ACCEPTED
13-14-0693-cv
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/27/2015 11:04:17 AM
CECILE FOY GSANGER
CLERK
13-14-00693-CV
FILED IN
13th COURT OF APPEALS
IN THE THIRTEENTH COURTCORPUS CHRISTI/EDINBURG, TEXAS
OF APPEALS
7/27/2015 11:04:17 AM
HIDALGO COUNTY, TEXASCECILE FOY GSANGER
Clerk
MARIANN BACHARACH
Appellant
v.
EUFEMIA GARCIA
Appellee
On Appeal from the 389th District Court
of Hidalgo County, Texas
Cause No. C-5535-14-H
The Honorable Letty Lopez, Judge Presiding
BRIEF OF APPELLEE
Chris Carmona
Texas Bar No. 24072022
PO BOX 7137
Houston, Texas 77248
Tel. (832)444-4293
Fax (832)460-2724
COUNSEL FOR APPELLEE
NO ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Index of Authorities……………………………………………………………..iii
Abbreviations, Record References, and Party Identification……………………ix
Issued Presented…………………………………………………………….…..xi
Statement of Facts………………………………………………………………..1
A. Appellees’ Fact Statement……………………………………………..1
B. Objections to Appellant’s Fact Statement……………………………..7
Summary of the Argument………………………………………………………8
Argument……………………………………………………………………….11
I. Standard of Review……………………………………………….11
A. Standard of Review of Appellant’s Burden
Under Section 27.005(b)………………………………………12
B. Standard of Review of Appellee’s Burden
Under Section 27.005(c)………………………………………14
II. The Trial Court properly denied appellant’s motion to dismiss….18
A. Appellant’s statements did not exclusively address
matters of public concern……………..……………………….21
1. Appellant did not establish by a preponderance of the
evidence that her statements were “a matter of public
concern.”………………………………………..………..21
2. The Act should properly be interpreted to apply to all
communications which remotely touch on a topic of public
debate, else the express legislative intention to protect every
person’s constitutional right to bring meritorious lawsuits
for demonstrable injury is obviated………………………25
3. Appellees established by clear and specific evidence a
prima facie case for each essential element of each cause
of action…………………………………………………..27
4. Clear and specific evidence established a prima facie case
for each element of the common law defamation and the
statutory libel causes of action...…………………………27
i
5. Clear and specific evidence established a prima facie case
for each element of defamation per se…………………...30
6. Clear and specific evidence established a prima facie case
for each element of the intentional infliction of emotional
distress cause of action…………………………………...33
7. Clear and specific evidence established a prima facie case
for each element of the invasion of privacy cause of
action…………………......................................................34
Conclusion……………………………………………………………………...35
Prayer……………………………………………………………………...……35
Certificate of Compliance………………………………………………………37
Certificate of Service…………………………………………………………...37
Appendix………………………………………………………………………..38
ii
INDEX OF AUTHORITIES
Cases
Adolph Coors Co. v. Rodriguez,
780 S.W.2d 477, 488 (Tex. App – Corpus Christi 1989, writ denied)…..31
Avila v. Larrea,
394 S.W.3d 646, 662 (Tex. App. – Dallas 2012, pet. Filed)…………….12
Bentley v. Bunton,
94 S.W.3d 579, 583-87, 591…………………………………17, 19, 28, 30
Better Bus. Bureau of Metro. Dallas v. Ward,
401 S.W.3d 440, 445 (Tex. App. – Dallas 2013, pet. Filed)…………….12
Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc.,
402 S.W.3D 299, 2013 Tex. App. LEXIS 6057 at *9 and 24, 6067 at *9-
10 (Tex. App.-Dallas 2013, pet. Filed)…………………………..11, 12, 13
Better Bus. Bureau of Metro Houston v. John Moore Services,
2013 Tex. App. LEXIS 8756 *8 (Tex. App. – Houston [1st Dist.] 2013, no
pet.)…………………………………………………………………..12, 15
Carr v. Brasher,
776 S.W.2d 567, 569 (Tex. 1989)…………..……………………….20, 30
Christy v. Stauffer Publications, Inc.,
437 S.W.2d 814 (Tex. 1969)…………………………………………….30
City of Brownsville v. Pena,
716 S.W.2d 677, 682 (Tex. App – Corpus Christi 1986, no writ)………31
City of Keller v. Wilson,
168 S.W.3d 802, 819-20 (Tex. 2005)……………………………13, 14, 17
Cox Tex. Newspapers, L.P. v. Penick,
219 S.W.3d 425, 433 (Tex. App – Austin 2007, pet. denied)…………...32
iii
Davis v. Davis,
734 S.W.2d 707, 711 (Tex. App – Houston [1st Dist.] 1987,
writ ref’d n.r.e.)………………………………………………………….32
Diamond Shamrock Refining & Mktg. Co. v. Mendez,
844 S.W.2d 198, 203 (Tex. 1992)……………………………………….34
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 759-61, 105 S. Ct. 2939, 2945-46, 86 L. Ed. 2d 593
(1985)………………………………………………………………..29, 30
Evans v. McKay,
212 S.W. 680, 685 (Tex. Civ. App – Dallas 1919, writ dism’d)………..31
Ex Parte George Tucker,
220 S.W. 75, 76, 110 Tex. 335, 337 (1920)……………………………..19
Ex Parte Tucci,
859 S.W.2d 1, 19-26 (Tex. 1993)………………………………………..20
First State Bank v. Ake,
6056 S.W.2d 696, 702 (Tex. App – Corpus Christi 1980,
writ ref’d n.r.e.)………………………………………………………….31
Gertz v. Robert Welch, Inc.,
418 U.S. 323, 347, 94. S. Ct. 2997, 41 L. Ed. 2d 789 (1974)…………...29
Hancock v. Variyam,
400 S.W.3d at 69…………………………………………………….30, 32
Hearst Corp. v. Skeen,
159 S.W.3d 633, 636-37 (Tex. 2005)……………………………………29
Hoffman-La Roche, Inc. v. Zeltwanger,
144S.W.3d 438, 445 (Tex. 2004)……………………………………20, 33
In Re Steven Lipsky,
2013 Tex, App. LEXIS 4975 *12, 32 (Tex. App. – Ft. Worth, 2013, no
pet……………………………………………………………………12, 15
iv
Industrial Found. Of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 682 (Tex. 1976), cert. denied…………………………34
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
341 S.W.3d 323, 337 (Tex. 2011)……………………………………….28
Jain v. Cambridge Petroleum Grp., Inc.,
395 S.W.3d 394, 2013 Tex. App. LEXIS 2088 (Tex. App. – Dallas 2013,
no pet.)…………………………………………………………………...12
Klentzman,
312 S.W.3d at 906………………………………………………………24
Marshall v. Mahaffey,
974 S.W.2d 942, 950 (Tex. App. – Houston [14th Dist.] 2011, no pet.)…30
McGalliard v. Kuhlmann,
722 S.W.2d 694, 697 (Tex. 1986)……………………………………….14
Milkovich v. Lorain Journal Co.,
497 U.S. 1, 19, 110 S. Ct. 2695, 2706, 111 L. Ed.2d 1, 18 (1990)….28, 30
Miranda v. Byles,
390 S.W.3d at 556……………………………………………………….32
Mission Consol. Indep. Sch. Dist. V. Garcia,
372 S.W.3d 629, 634 (Tex. 2012)……………………………………….18
Montgomery Indep. Sch. Dist. V. Davis,
34 S.W.3d 559, 567 (Tex. 2000)………………………………………...14
Nat’l Family Care Life Ins. Co. v. Fletcher,
57 S.W.3d 662, 669-70 (Tex. App. – Beaumont 2001, pet. denied)…….17
Neely v. Wilson,
56 Tex. Sup. J. 766 *12, 2013 Tex. LEXIS 511 (June 28, 2013)……16, 20
New Times, Inc. v. Isaacks,
146 S.W.3d 144, 157 (Tex. 2004)……………………………………….31
v
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
2013 Tex. App. LEXIS 5407 *16-17(Tex. App.—Houston [1st Dist.] May
2, 2013, no pet.)………………………………………………………….12
O’Brien v. Daboval,
388 S.W.3d 826, 840 (Tex. App. – Houston [1st Dist.] 2012, no pet.)….28
Peshak v. Greer,
13 S.W.3d 421, 425-26 (Tex. App – Corpus Christi 2000, no pet.)……..29
Philadelphia Newspapers, Inc. v. Hepps,
475, U.S. 767, 776-77, 106 S. Ct. 1558, 1564, 89 L. Ed. 2d 783 (1986)..29
Rehak Creative Servs., Inc. v. Witt,
2013 Tex. App. LEXIS 6196, at *22-23………………………...12, 14, 15
Richardson v. City of Pasadena,
513 S.W.2d 1, 4 (Tex. 1974)…………………………………………….16
Rodriguez v. Printone Color Corp.,
982 S.W.2d 69, 72 (Tex. App. – Houston [1st Dist.] 1998, pet. denied…15
Shearson Leham Hutton, Inc. v. Tucker,
806 S.W.2d 914, 922 (Tex. App – Corpus Christi 1991, writ dism’d
w.o.j.)…………………………………………………………………….31
Star Telegram, Inc. v. Doe,
915 S.W.2d 471, 473-74, (Tex. 1995)……………………………….20, 34
Tex. Lottery Comm’n v. First State Bank of DeQueen,
325 S.W.3d 628, 635 (Tex. 2010)……………………………………….13
Thomas-Smith v. Mackin,
S.W.3d 503, 509 (Tex. App. – Houston [14th Dist.] 2007, no pet.)……..27
Toles v. Toles,
45 S.W.3d 252, 260 (Tex. App.-Dallas 2001, pet. Denied)……………..33
Transport Ins. Co. v. Faircloth,
898 S.W.2d 269, 276 (Tex. 1995)……………………………………….28
vi
Thomas-Smith v. Mackin,
S.W.3d 503, 509 (Tex. App. – Houston [14th Dist.] 2007, no pet.)……..27
Turner v. KTRK TV, Inc.,
38 S.W.3d 103, 114, 117 (Tex. 2000)……………………………….20, 31
Twyman v. Twyman,
855 S.W.2d 619, 623 (Tex. 1993)……………………………………….33
West Texas Utilities Co. v. Wills,
164 S.W.2d 405, 412 (Tex. Civ. App – Austin 1942, no writ)………….31
WFAA-TC. Inc,
978 S.W.2d at 571……………………………………………………….27
Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro Dallas, Inc.,
2013 Tex. App. LEXIS 7348 (Tex. App. – Dallas 2013, no pet.)……….12
Statutes
TEX. CIV. PRAC. & REM. CODE § 27.001…………………………………..25
TEX. CIV. PRAC. & REM. CODE § 27.001(3)……………………………….25
TEX. CIV. PRAC. & REM. CODE § 27.001(7)……………………………….26
TEX. CIV. PRAC. & REM. CODE § 27.002………………………………20, 21
TEX. CIV. PRAC. & REM. CODE § 27.009(a)……………………………….11
TEX. CIV. PRAC. & REM. CODE § 27.011…………………………………..26
TEX. CIV. PRAC. & REM. CODE § 27.011(a) and (b)……………………….26
TEX. CIV. PRAC. & REM. CODE § 73.001………………………………20, 28
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001…………………………...25
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(d).……………………….16
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)………..11, 12, 13, 14, 27
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)……………11, 14, 17, 18
TEX. CIV. PRAC. & REM. CODE ANN. § 27.011…………………...20, 21, 26
vii
Other Authorities
RESTATEMENT 2ND TORTS, § 652D, cmt…………………………………..34
TEX. CONST. SRT. I, § 8……………………………………………………...19
viii
ABBREVIATIONS AND RECORD REFERENCES
Clerk’s Record
The (original) Clerk’s Record is cited as “CR [page number].”
Reporter’s Record – Testimony
Direct Examination of Mariann Bacharach is cited as: “CV Supp Rpt Rec
Volume 1 OF Volume 1”.
Parties
When necessary parties will be referred to as Appellant and Appellee.
Appendices
The citation “App.” Refers to the Appendix to the Brief of Appellant.
ix
PARTY IDENTIFICATION
APPELLEE
EUFEMIA GARCIA
COUNSEL FOR APPELLEE
CHRIS CARMONA
P.O.BOX 90014
HOUSTON, TX 77290
CHRIS@CAMONALAWOFFICE.COM
APPELLANT
MARIANN BACHARACH
P.O.BOX 8217
HOUSTON, TX 77288
PRO SE
832-352-5926
BACHARACHMARIANN@GMAIL.COM
x
ISSUES PRESENTED
1. Did the trial court err denying Appellant’s Motion to Dismiss under the
Texas Citizens Participation Act?
2. Did Appellant meet her standard of evidence required by the Texas
Citizens Participation Act in order to shift the burden to Appellee?
3. Did Appellee present a prima facie case for her causes of action?
xi
STATEMENT OF FACTS
A. APPELLEE’S FACT STATEMENT
This case is an interlocutory appeal by Appellant from the 389th District
Court in Hidalgo County as a result of denying Appellant’s Motion to Dismiss
under Chapter 27 of the Texas Civil Practice Remedies Code commonly known as
the Citizen’s Participation Act. Appellee’s petition for numerous causes of action
including libel, libel per se, intentional infliction of emotional distress, negligent
infliction of emotional distress, invasion of privacy, civil rights violation, and gross
negligence were not dismissed.
This case involves Appellant, Mariann Bacharach and her “scorched earth”
attempt to damage Appellee, Eufemia Garcia. Appellant has attempted a modern
day electronic lynching of Appellees rights to seek redress in the Courts. Appellant
has espoused vile racist threats, taunts, and character assassination of Appellees
reputation by calling Appellee hideous names. Appellant also continues to call
Appellee and her family ethnic and cultural slurs in hopes of intimidating Appellee
into rescinding her complaints against Appellant, Mariann Bacharach. All of the
Appellant’s conduct is actionable, entitling the Appellee to relief from this Court.
Appellant published information on the internet accusing Appellee of being
a prostitute (CR 267), additionally, Appellant continues a hate inspired campaign
1
on the Internet and via telephone against Appellee and her family. She has
espoused racist rhetoric to the point of Appellee fearing that Appellant, Mariann
Bacharach, might physically hurt her. Appellant has previously shot a lawyer with
a 357 caliber weapon.
Appellee, is the mother, grandmother, and mother in law of five different
lawyers in the state of Texas. Appellee’s son Rogelio Garcia is a lawyer in good
standing with the State Bar of Texas and has been for approximately 32 years.
Appellee’s son had a relationship with Appellant and after a failed relationship
Appellant threatened Appellee’s son with revenge and attacks not only to himself
and his immediate family, but his law firm, legal representatives and his other
relatives.
Appellant published information on the internet accusing Appellee, Eufemia
Garcia, the mother of Rogelio Garcia of being a prostitute. Appellant has judicially
confessed, not only in various courts in Harris County but also in the Court
proceedings in the 389th District Court of Hidalgo County, that she was the author
of said posts. Throughout this litigation Appellant has continued to harass
Appellee. To date, Mariann Bacharach has been found in contempt by the 157th
District Court in Harris County and fined $5,000 for continual attacks on
Appellee’s son. Appellee was made aware throughout the year that Mariann
Bacharach had published a post calling the Appellee a prostitute.
2
As a result of Appellee being called a prostitute, Appellee has been
embarrassed, offended, and humiliated to the point that Appellee has become
anxious, nervous, and depressed. Appellee has had individuals in her community
ask her if she is such person. Appellee’s health has deteriorated to the point that
her quintuple heart surgery symptoms have been exacerbated. Appellee initially
started this lawsuit as Jane Doe because of the embarrassment and humiliation that
she had suffered as a result of the postings by Appellant Mariann Bacharach.
Appellant has now aggravated Appellee’s symptoms by claiming the initial filing
of Jane Doe was not Appellee, Eufemia Garcia, but rather a “ghost plaintiff”. This
has further caused her mental anguish, anxiety, and depression. Appellee foresees
that Appellant, Mariann Bacharach will continue her attacks against Appellee
unless access to the justice system is allowed.
The defamatory statements that the Appellee was a prostitute constitute libel
and libel per se because they asserted that the Appellee was guilty of sexual and
other vile acts, thereby demeaning her reputation as being honest and trustworthy.
The Appellant’s defamatory statements are false. The truth is that Appellee never
engaged in any improper activity. Appellee testified at the hearing in front of the
389th District Court that she was not and never has been a prostitute in her life.
The Appellant, Mariann Bacharach, made false and defamatory statements
intentionally by failing to state the truth. The Appellant knew that the statements
3
were false. The Appellant published the defamatory statements with knowledge
that they were false and regard to their falsity.
As a direct and proximate result of the Appellant’s false and defamatory
statements, the Appellee has endured shame, embarrassment, humiliation, and
mental pain and anguish. Additionally, the Appellee has and will in the future be
seriously injured in her reputation, good name, and standing in the community, and
will be exposed to the hatred, contempt, and ridicule of the public in general.
Consequently, Appellee, seeks actual and exemplary damages.
In addition to the severe emotional distress the Appellee has suffered, as a
proximate result of the Appellant’s conduct in that, in all reasonable probability,
the Appellee will continue to suffer this mental pain, anguish, and mental
depression for a long time into the future in that the posts that Mariann Bacharach
published are permanent in nature.
It aggravated Appellee’s condition that Appellant was intentionally trying to
cause damage to Appellees son’s reputation by wrongfully speaking about the
Appellee, herself.
Appellant did not act like a reasonable person would under the same similar
circumstances and if she had she would not have made a publication disparaging
Appellee’s good name. Appellant is now claiming that Appellee is not actually her
4
but some other male person who happens to be a family member. Appellant,
Mariann Bacharach made no effort to ascertain the falsity of her defamatory
statements about Appellee prior to posting. The Appellant has now exacerbated
Appellees medical conditions in her attempt to embarrass humiliate and threaten
Appellees health.
Appellant has now attempted to continuously embarrass, humiliate, threaten
and alarm Appellee by filing frivolous, fictional and hearsay “alleged” evidence
calling an additional family member a “ghost” Appellee. Appellant believes that
she can file irrelevant and immaterial information solely for the purpose of
embarrassing Appellee and her family members. The “alleged” evidence that
Appellee has attached to her petition are rumors, innuendos, lies, and fraudulent
data simply submitted to embarrass Appellee and family members. Said alleged
evidence by Appellant has attempted to compound stress on the 86 year old
Appellee who is now, as a result of said stress, seeking medical help for her
damages.
Appellant has now published a website attacking not only family members
but her legal representative, Chris Carmona. Appellant has telephonically attacked
Appellee’s lawyer in many posts in hopes that said Counsel will abandon his
representation of Appellee in Hidalgo County. Appellee has been threatened and
5
harassed by different people to drop her lawsuit and claiming that she will be
jailed. Appellee believes that these individuals are working with Appellant.
Appellant has bullied, laughed, and criticized Appellee. Appellant has also
wrongfully stated, wrote, and insinuated that Appellee is not an American and that
her family members are not born Americans. Appellant has also claimed that,
Appellee lives in Poverty or that Appellee has never looked at internet sites nor can
she read, write, or speak English. Appellant has also claimed that her family
members are criminals and/or outcasts of society.
Appellant’s acts or omissions described above, when viewed from the
standpoint of Appellant at the time of the act or omission, involved an extreme
degree of risk, considering the probability and magnitude of the potential harm to
Appellee and others. Appellant had actual, subjective awareness of the risk
involved in the above described acts or omissions, but nevertheless proceeded with
conscious indifference to the rights, safety, or welfare of Appellee. The
Appellant’s conduct was malicious, intentional and/or so grossly negligent as to
entitle the Appellee the recovery of exemplary damages.
Appellant has continued the numerous personal attacks on Appellee by filing
with this Court numerous irrelevant, immaterial and incompetent internet postings
that were never at issue at the hearing for Appellant’s Motion to Dismiss. Said
6
attacks are designed only to paint Appellee in an unflattering light. Appellant’s
brief is replete with accusations and statements which are not relevant to this
appeal, but are presumably included for the sole purpose of attacking, harming, and
attempting to humiliate Appellee. This tactic is consistent with the balance of
Appellant’s brief which focuses on her subjective characterizations of what she
believes to be true. After Appellant’s denial of her Motion to Dismiss Appellant’s
attacks have become more vitriol and more untruthful in the apparent hope that
Appellee will retreat from her lawsuit.
B. Objection to Appellant’s Fact Statement
This appeal involves Eufemia Garcia as Appellee and Mariann Bachrach as
Appellant. Appellee sued Appellant for among other things defamation,
defamation per se, intentional infliction of emotional distress, and invasion of
privacy. Appellant erroneously believes that she can call Appellee a prostitute as
long as it’s not intentional and as long as she subjectively believes said statement.
Appellant has included numerous lies, innuendoes and rumors throughout this
appeal and in her statement of facts regarding Appellee’s son, Rogelio Garcia. Said
malicious information is included only to embarrass, to humiliate, and to place
Appellee in a false light with the Appellate Court. The Appellee requests that this
honorable Court strike and disregard any documents or statements made by
Appellant that were neither introduced, admitted, or accepted as evidence by the
7
trial Court. The Appellant has attempted to circumvent all the Texas Rules of
Procedure and the Texas Rules of Evidence by attempting to insert documents with
hearsay multiple hearsay, and incompetent evidence in violation of the Texas
Rules of Evidence and Texas Rules of Appellate Procedure. Appellee moves to
strike all of the Court record references by Appellant including Court Records 474,
202, 105, 000, 461, 473, 454, 187, 141-44, 133-135, 56, 453-460, 141-144, 224-
225, 203, 253, 204, 222, and 300. Appellee filed a response to Appellant’s Motion
to Dismiss and specifically objected to each and every attachment. Please see CR
250-265.
Appellant mistakenly believes that neither other family members nor
Appellee’s legal representative can sue her in other counties for defamation and
other causes of action. Appellee is a lifelong resident of Hidalgo County and
commands her causes of action against Appellant as a result of Appellant calling
Appellee a “prostitute”. Appellant continues to believe and assert that Appellee is a
“ghost” plaintiff even though Appellee was subject to cross examination for more
than an hour at Appellant’s Motion to Dismiss hearing. Appellee has filed her
lawsuit in Hidalgo County in order to attempt to regain her good name with her
community and hold Appellant liable for damages that Appellant proximately
caused to her.
8
SUMMARY OF THE ARGUMENT
Appellant Mariann Bacharach has filed this interlocutory appeal as a result
of her denial of her petition to dismiss based on Chapter 27 of the TEX. CIV.
PRAC. & REM. CODE commonly referred to as the Texas Citizens Participation
Act. Appellee’s lawsuit alleging defamation, defamation per se, intentional
infliction of emotional distress, and invasion of privacy was allowed to continue.
Appellant argued in her direct examination with the Judge of the 389th that Texas
law allows her the right to call Appellee a prostitute so long as Appellant made
said statement unintentionally and as long as she subjectively believed it to be true.
Appellant confessed that she made that statement about Appellee in a post posted
on Liars and Cheaters site, in October of 2013.
The act which has as its goal to end politicized suits quickly, without
significant expense does not preclude the constitutional rights of its citizens to
pursues legitimate meritorious litigation. The act does not permit Appellant to
make outrageous and false claims without fear of repercussion. Appellant has
utterly failed in meeting her burden that her statement about Appellant was a
matter of free speech regarding a public concern. Appellant further testified to the
Court that Appellee is a private person and not a public person.
In order to prevail on the Motion to Dismiss, Appellant must show by
preponderance of the evidence, that the activity of which the Appellant complaints
9
is based upon her exercise of right to free speech connected to a matter of public
concern. Appellant testified that Appellee was a private citizen and not a “public
person” and that Appellee’s was not a matter of “public concern”. Appellant filed
an answer with hundreds of attached documents that were irrelevant, immaterial,
and not in compliance with the Texas Rules of Evidence. The Appellant never
introduced nor had any of said documents admitted into evidence at the hearing.
Additionally, Appellant failed to request that the judge make specific findings of
fact or conclusions of law. Appellant crossed examined Appellee for more than an
hour and Appellee denied that she was now or ever a prostitute. The trial Court
was the ultimate finder of fact and was free to and apparently did disbelieve
Appellant. Appellant continues to hide behind the act asserting that vicious false
statements of Appellee was correctly made by her because it was not intentional.
Appellee provided clear and specific prima facie evidence of each element
of her cause of action even though Appellant failed to meet her burden of proof.
Appellee provided evidence of defamation, defamation per se, intentional infliction
of emotional distress, and invasion of privacy.
10
ARGUMENT
I. STANDARD OF REVIEW
The standard of review for statutory construction is well settled. Better Bus.
Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299 (Tex. App.-Dallas
2013, pet. Filed). However, this particular statute is written with four distinct and
different standards of review: (i) preponderance of the evidence or factual
sufficiency standard (Section 27.005(b)); (ii) clear and specific evidence, a
heretofore unknown standard (Section 27.005(c)); (iii) a prima facie case or legal
sufficiency standard (Section 27.005(c)); and (iv) "as justice and equity may
require,” an abuse of discretion standard (Section 27.009(a) (1)).
This Supreme Court has issued several various opinions addressing motions
to dismiss pursuant to the Act, but it has not yet reached the question of the
standard of review to apply to a ruling under Section 27.005(c), nor has it
expressly addressed the standard of review of a determination by the trial court
based on disputed evidence under Section 27.005(b) of the Act, Better Bus. Bureau
of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299, 2013 Tex. App. LEXIS
6057 *24 (‘[W]e need not consider in this case the quantum of proof necessary to
constitute clear and specific evidence of a prima facie case, for each essential
element of a claim because BH DFW failed to offer any evidence of the existence
of its alleged contract with the BBB.”); Better Bus. Bureau of Metro. Dallas v.
11
Ward, 401 S.W.3d 440, 445 (Tex. App. – Dallas 2013, pet. Filed) (plaintiff cited
no evidence to support his claims); Wholesale TV & Radio Adver., LLC v. Better
Bus. Bureau of Metro Dallas, Inc., 2013 Tex. App. LEXIS 7348 (Tex. App. –
Dallas 2013, no pet.) (issues inadequately briefed); Jain v. Cambridge Petroleum
Grp., Inc., 395 S.W.3d 394, 2013 Tex. App. LEXIS 2088 (Tex. App. – Dallas
2013, no pet.) (dismissed for want of jurisdiction);Avila v. Larrea, 394 S.W.3d
646, 662 (Tex. App. – Dallas 2012, pet. Filed) (plaintiff presented no evidence of
falsity); In Re Steven Lipsky, 2015 Tex. LEXIS 350; 58 Tex.Sup. J. 707.
A. Standard of review of Appellant’s burden under Section 27.005(b).
Several courts have held that the review of a ruling under Section 27.005(b)
of the Act is de novo. “We review this determination de novo as an
application of law facts.” Better Bus. Bureau of Metro Houston v. John
Moore Services, 2013 Tex. App. LEXIS 8756 *8 (Tex. App. – Houston [1st
Dist.] 2013, no pet.).See also Newspaper Holdings, Inc. v. Crazy Hotel
Assisted Living, Ltd., 2013 Tex. App. LEXIS 5407 *16 (Tex. App.—
Houston [1st Dist.] May 2, 2013, no pet.) (the first step of this inquiry is a
legal we review de novo.”); Rehak Creative Servs., Inc. v. Witt, 2013 Tex.
App. LEXIS 6196, at *22-23. The interpretation of Section 27.005(b) is a
question of law that is reviewed de novo. Better Bus. Bureau of Metro
Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299, 2013 Tex. App. LEXIS
12
6057 at *9. But, the trial court must determine what those facts are in the
first instance, in order for the legal analysis to be made on appeal.
By its plain language, Section 27.005(b) of the Act requires Appellant
to demonstrate “by a preponderance of the evidence that the legal action is
based on, relates to, or is in response to the party’s exercise of the right of
free speech; the right to petition; or the right of association.” TEX. CIV.
PRAC. & REM. CODE ANN § 27.005(b). The Court’s primary purpose is
to give effect to the Legislature’s intent by relying on the plain meaning of
the text. Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402
S.W.3d 299, 2013 Tex. App. LEXIS 6057 at *9; Tex. Lottery Comm’n v.
First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). The
Legislature tries to say what it means, and therefore the words it chooses
should be the surest guide to legislative intent unless a different meaning is
supplied by statutory definition or is apparent from the context, or the plain
meaning leads to absurd results. Better Bus. Bureau of Metro Dallas, Inc. v.
BH DFW, Inc., 402 S.W.3d 299, 2013 Tex. App. LEXIS 6067 at *9-10.
Texas law is well-settled that the preponderance of the evidence
standard of review is one of factual sufficiency. In resolving factual disputes,
the trial court may believe one witness and disbelieve others, and it may
resolve any inconsistencies in a witness’s testimony. City of Keller v.
13
Wilson, 168 S.W.3d 802, 819 (Tex. 2005); McGalliard v. Kuhlmann, 722
S.W.2d 694, 697 (Tex. 1986); Montgomery Indep. Sch. Dist. V. Davis, 34
S.W.3d 559, 567 (Tex. 2000).
The trial court, as fact finder, may disregard even uncontracted and
unimpeached testimony from disinterested witnesses. City of Keller v.
Wilson, 168 S.W.3d at 820. With regard to finding the facts by a
preponderance of the evidence (so the law can be applied to the facts
determined), even undisputed testimony from Appellant, as an interested
witness, only raises a fact question for the fact finder to resolve unless the
undisputed testimony is clear, positive, direct, otherwise credible, free from
contradictions and inconsistencies, and could have been readily
controverted.
B. Standard of Review of Appellee’s Burden Under Section 27.005(c)
If Appellant has met her burden under Section 27.005(b) of the Act, the
focus shifts to Appellees’ burden under Section 27.005(c) of the Act to
“establish by clear and specific evidence a prima facie case for each
essential element of the claims in question.” Rehak Creative does hold that
the trial court’s determination that a party presented prima facie proof of a
meritorious claim is reviewed de novo, but also holds that the review under
14
this provision of the statute is “an independent determination applying the
same standard used by the trial court in the first instance.” Rehak Creative,
2013 Tex. App. LEXIS 6196 *22-23. This requires review of the record in
alight favorable to Appellees to determine whether the record contains a
minimum quantum of clear and specific evidence to support a rational
inference that the allegations of fact (as to each essential element if the
claim) were true, disregarding any contrary evidence. Better Bus. Bureau of
Metro Houston v. John Moore Services, 2013 Tex. App. LEXIS 8756 at *14;
Crazy Hotel Assisted Living, Ltd., 2013 Tex. App. LEXIS 5407 *16-17
(“The legislature’s use of the term ‘prima facie case’ in the second step
implies a minimal factual burden: “[a] prima facie case represents the
minimum quantity of evidence necessary to support a rational inference that
the allegation of fact is true.”) (citing Rodriguez v. Printone Color Corp.,
982 S.W.2d 69, 72 (Tex. App. – Houston [1st Dist.] 1998, pet. denied)); In
Re Lipsky, 2013 Tex, App. LEXIS 4975 *12, 32 (Tex. App. – Ft. Worth,
2013, no pet.) (rational inference from plaintiff’s evidence was that a false or
defamatory statement was made with malice); but see Rehak Creative v.
Witt, 2013 Tex. App LEXIS 6196 * 22-23 (clear and specific means without
inferences or intendments).
15
As noted above, the Legislature amended the Act in 2013. One of the
amendments added Section 27.005(d): “Notwithstanding the provisions of
Subsection (c), the court shall dismiss a legal action against the moving
party if the moving party establishes by a preponderance of the evidence
each essential element of a valid defense to the movant’s claim.” In addition,
this change in the statute is clearly unconstitutional and if it were applicable
to this appeal it would be void. It is one thing to conduct an early review to
determine if a plaintiff’s claim is so lacking in the merit that she cannot
present a prima facie case before proceeding to discovery and trial, but it is
altogether different to require a party to defend an action without trial, by
presenting affidavit evidence which is weighed by a fact finder who never
sees a live witness; and such a process deprives the parties of their
constitutional right to trial by jury and to have live testimony where
witnesses are subject to cross examination and confrontation, replacing die
process with a system that decided cases based on which lawyer wrote the
best affidavit. See Neely v. Wilson, 2013 Tex. LEXIS 511, *55-56;
Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974) (“the right to
cross examinations is a vital element in a fair adjudication of disputed
facts[,]” and includes “the right to cross examination adverse witnesses and
to examine and rebut all evidence[.]); Nat’l Family Care Life Ins. Co. v.
16
Fletcher, 57 S.W.3d 662, 669-70 (Tex. App. – Beaumont 2001, pet. denied);
Bentley v. Bunton, 94 S.W.3d 516, 587 (Tex. 2002) (“If the evidence is
disputed, falsity must be determined by the finder of fact.”)
If preponderance of the evidence standard for reviewing Appellees’
evidence were applicable to 27.005(c), the standard of review would be
factual sufficiency – the trial court may believe one witness and disbelieve
others, and it may resolve any inconsistencies in a witness’s testimony. City
of Keller, 168 S.W.3d at 819. The trial court as fact finder may disregard the
interested testimony of Appellant and may reject even uncontradicted and
unimpeached testimony from disinterested witnesses. City of Keller, Id. At
820.
By definition, prima facie means the amount of proof required to go
to the jury – if the evidence is disputed, the trial is not over in favor of the
defendant; instead the fact finder resolves the dispute. There is no legitimate
basis for assuming that the Legislature intended to allow a defaming
tortfeaser to avoid responsibility and recover attorney fees from the persons
defamed merely by falsely swearing “it’s all true.”
The Texas Supreme Court has held that the burden of showing a
prima facie case is minimal and not onerous. See Mission Consol. Indep.
17
Sch. Dist. V. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (case involving
employment discrimination). Accordingly, unless there is no clear and
specific evidence supporting Appellees’ causes of action, Appellees are
entitled to discovery and to have their claims submitted to the jury.
In determining whether there was clear and specific evidence to
establish plaintiff’s prima facie case and avoid dismissal pursuant to TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(c) of the Texas Citizens
Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN.
§27.001-27.011, relevant circumstantial evidence could be considered; The
Supreme Court of Texas accordingly disapproved those cases that
interpreted the TCPA to require direct evidence of each essential element of
the underlying claim to avoid dismissal; A gas well driller’s defamation
counterclaim against a property owner was properly not dismissed because
clear and specific evidence showed the owner’s statements were defamatory
per se, as they reflected on the driller’s fitness and abilities as a natural gas
producer, and proof of particular damage was not required.
II. The Trial Court properly denied Appellant’s motion to dismiss.
Under Texas law, the privilege to speak freely carries with it the
concomitant responsibility to answer in damages for the abuse of that privilege.
18
TEX. CONST. SRT. I, § 8. Ex parte Tucker, 220 S.W. 75, 76, 110 Tex. 335, 337
(1920).
The purpose of this provision is to preserve what we call “Liberty of
speech” and “the freedom of the press,” and at the same time hold all
persons accountable to the law for the misuse of that liberty or
freedom. Responsibility for the abuse of the privilege is, as fully
emphasized by its language, as that the privilege itself shall be free
from all species of restraint. But the use of the privilege, the provision
commands, shall be dealt with in no other way. It is not to be
remedied by denial of the right to speak, but only by appropriate
penalties for what is wrongfully spoken. Punishment for the abuse of
the right, not prevention of its exercise, is what the provision
contemplates. There can be no liberty in the individual to speak,
without the unhindered right to speak. It cannot co-exist with a power
to compel his silence or fashion the form of his speech. Responsibility
for the abuse of the right in its nature pre-diposes freedom in the
exercise of the right. It is denial of the authority, anywhere, to prevent
its exercise.
Ex parte Tucker, 220 S.W. at 76 (emphasis added). Knowing false statements are
not afforded constitutional protection. Bentley, 94 S.W.3d at 591.
Appellee sued to hold Appellant accountable for calling her a prostitute.
Appellant sought to dismiss all of Appellees’ causes of action pursuant to the Act.
The trial court denied the Motion to Dismiss.
The stated purpose of the Act is to “encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government,” while also protecting the “rights of a person
19
to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM.
CODE § 27.002. The Act does not lessen any other remedy available under Texas
law (TEX. CIV. PRAC. & REM. CODE § 27.011), and thus is not intended to
permit persons publishing false, harmful, extortionate, and destructive statements
to merely assert the Act and be exonerated of responsibility for their wrongful
conduct. Simply put, the Act does not change or modify Texas law regarding the
well-settled limits of free speech. In a suit for damages based on Appellant’s abuse
of that privilege, the Texas Constitution affords more extensive protection for
Appellees than does the First Amendment of the United States Constitution. Neely
v. Wilson, 56 Tex. Sup. J. 766 *12, 2013 Tex. LEXIS 511 (June 28, 2013); Turner
v. KTRK TV, Inc., 38 S.W.3d 103, 117 (Tex. 2000); see generally Ex parte Tucci,
859 S.W.2d 1, 19-26 (Tex. 1993) (Phillips, C.J., concurring) (discussing history of
Texas free expression clause).
Each cause of action asserted by Appellee is recognized in Texas law: Star
Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74, (Tex. 1995) (invasion of privacy
by publicly disclosing private facts); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989) (defamation); TEX. CIV. PRAC. & REM. CODE § 73.001 (statutory libel);
and Hoffman-La Roche, Inc. v. Zeltwanger, 144S.W.3d 438, 445 (Tex. 2004)
(intentional infliction of emotional distress). Accordingly, the Act cannot be read
to diminish Appellees’ rights to bring a “meritorious lawsuit for demonstrable
20
injury” based on these causes of action. TEX. CIV. PRAC. & REM. CODE §§
27.002, 27.011. Speech which transgresses these limits is tortious and is not
constitutionally protected from claims for damages.
A. Appellant’s actionable statements did not address matters of public
concern.
1. Appellant has judicially confessed that Appellee is not a matter
of public concern and is not a public figure. Appellant has been
disingenuous with the Court in her Appellate Brief and has attempted
to move her position. Please see Direct Examination of Mariann
Bacharach below.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 3, Lines 8-14
MRS. BACHARACH: My name is Mariann Bacharach and I am here to
request a Motion to Dismiss on the Citizens Participation Act. I filed – I
posted numerous posts about Rogelio Garcia. The post here in question that
we’re talking about was on Liars and Cheaters. I posted some things about
Mr. Garcia and also said his mother was a prostitute…
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 4, Lines 23-24
THE COURT: This is not about Rogelio Garcia. This is about Eufemia
Garcia.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 5, Lines 10-13
21
THE COURT: Did you indicate to me that you did post and you’re under
oath saying that Rogelio Garcia’s mother was a prostitute?
MRS. BACHARACH: Yes, Your Honor.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 5, Lines 24-25 & Page 6,
Lines 1-5
THE COURT: Stick to what you’re here for now. You’re here on
statements that were made and that you wanted to dismiss, so stick to what
you’re here for. Stop. I am now cutting you off about any other family
members. We’re here about specific statements you made and how you
believe that it should be dismissed under the statute.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 7, Lines 18-25 & Page 8,
Lines 1-2, 4-10
THE COURT: The defense can assert the defense of truth. That means the
statement, if it’s true, you’re covered. Thinking it’s true doesn’t make it so.
You’re going to have to prove that she was a prostitute. That’s what it is.
And by the way, you’re here on a very specific statute that does deal with a
public concern or public figure and you haven’t even gotten to that. I think
we’d agree that Mrs. Garcia is not a public figure, right?
Mrs. Bacharach: Yes, I agree….
22
THE COURT: Guess what? Posting something about somebody’s mother
and they – people can interpret who that mother is. You cannot then say it
wasn’t about her. You did actually, now have said on the stand, under oath,
that you posted something about Rogelio Garcia’s mother. Did you not?
MRS. BACHARACH: Yes, I did, Your Honor.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 9, Lines 14-25 & Page 10,
Line 1
THE COURT: We’re not here about Mr. Garcia. We’re not here about the
lawsuit in Harris County. We’re not here about any possible lawsuit that
Chris Carmona has against you. We are here about specific statements that
you believe fall under this statute. You seem to have a misconception that
you can’t be sued anywhere else by anybody else because there’s some
injunction in Harris County. With all due respect, ma’am, you’re here about
your own actions of which you’ve actually testified to that you did and why
does that fall under this statute. You’ve testified that you can agree that Mrs.
Garcia is not a public figure. And her personal life is not a public concern, is
it?
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 10, lines 2-3
MRS. BACHARACH: No, it is not.
23
THE COURT: Okay, Go ahead. I’m listening.
CV Supp Rpt Rec Volume 1 OF Volume 1, Page 12, Lines 14-16
THE COURT: You don’t get it. Wow. This is not about Rogelio Garcia and
you’re assuming that she – the woman testified that she was not a
prostitute…
For arguments sake a matter is not a “matter of public concern” merely
because third parties might be interested in gossip, or because there is public
debate concerning similar issues that do not directly implicate the plaintiffs.
An individual, and more pertinently perhaps the community, is
most offended by the publication of intimate personal facts when
the community has no interest in them beyond the voyeuristic
thrill of penetrating the wall of privacy that surrounds a stranger.
Appellant published on a post “Liars and Cheaters” detailed defamatory
statements and has attempted to compound the problem by steering people to the
post by establishing a website called “www.ThugLaw.LexNevi.com.” Appellant
presented no evidence that there was any public discussion of controversy about
Appellee’s life, Klentzman, 312 S.W.3d at 906.
Nor can Appellant create a controversy about her statements merely by
publishing them. See Id. At 905. Appellant has failed to demonstrate a right to
association with anyone to discuss the private of Appellant, an 86 year old woman.
24
Her false incomplete and incompetent attachments do not relate to the private life
of Appellant.
2. The Act should not properly be interpreted to apply to all
communications which might remotely touch on a topic of public
debate, else the express legislative intention to protect every
person’s constitutional right to bring meritorious lawsuits for
demonstrable injury is nullified.
The Act defines “the exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” TEX. CIV.
PRAC. & REM. CODE § 27.001(3). And a matter public concern under TEX.
CIV. PRAC. & REM. CODE § 27.001
(7) “Matter of public concern” includes an issue related to:
B) Health or safety;
C) Environmental, economic, or community well-being;
D) The government;
E) A public official or public figure;
F) or a food, product, or service in the marketplace.
(8) “Official proceeding” means any type of administrative, executive, legislative,
or judicial proceeding that may be conducted before a public servant.
(9) “Public servant” means a person elected, selected, appointed, employed, or
otherwise designated as one of the following, even if the person has not yet
qualified for office or assumed the person’s duties:
a) An officer, employee, or agent of government;
b) A juror;
c) An arbitrator, referee, or other person who is authorized by law or private
written agreement to hear or determine a cause or controversy;
d) An attorney or notary public when participating in the performance of a
governmental function; or
e) A person who is performing a governmental function under a claim of
right but is not legally qualified to do so.
25
Appellant argues that the Act should be liberally construed to protect her
right to speak freely. Yet, the same Act requires that it be construed just as
“liberally to effectuate its purpose and intent fully” to protect the constitutional
rights and remedies of Appellee to bring meritorious actions for demonstrable
injuries. TEX. CIV. PRAC. & REM. CODE § 27.011(a) and (b).
Under Appellant’s interpretation of the statute, so long as any defamatory
statement she makes as a private person about another private person is topically
related to any “matter of public concern” listed in Section 27.001(7) (even if there
is no public debate, or mention of the people, incidents, or events she claims to
relate), that defamatory statement comes under the Act’s definition of a matter of
public concern. This is not the law in Texas, and the Act expressly requires that it
be interpreted liberally to effectuate its purpose and intent fully, meaning it cannot
abrogate or lessen any constitutional remedy afforded Appellees, including the
right of redress for reputational torts. TEX. CIV. PRAC. & REM. CODE § 27.011.
The list of matters of public concern in Section 27.001(7) (health or safety;
environmental, economic, or community well-being; the government; a public
official or public figure; or a good, product, or service in the marketplace) must be
read to identify possible matters of public concern which include the listed topics.
To interpret the Act to hold that it requires that any private communication which
26
relates to any of these topics, to any degree, is a “matter of public concern” makes
the list meaningless.
3. Appellees established by clear and specific evidence a prima facie case
for each essential element of each cause of action.
Assuming Appellant met her initial burden under Section 27.005(b) of the
Act, the trial court properly found that Appellee presented clear and specific
evidence, sufficient to make a prima facie showing, on each element of her
causes of action which were not dismissed. Appellee presented not only her
testimony, affidavit (CR 237), and her petition (CR 220), but also organized
the evidence of phone calls to Appellee’s family member and legal counsel
to show how each elements of a cause of action was proven (CR 239-250).
4. Clear and specific evidence established a prima facie case for each
element of the common law defamation cause of action and the statutory
libel cause of action.
A Plaintiff pursing a cause of action for common law defamation must
establish that the defendant published or republished a statement of fact. WFAA-
TC. Inc, 978 S.W.2d at 571. The statement must be sufficiently factual to be
susceptible of being proved objectively true or false, as contrasted with a purely
subjective assertion. Thomas-Smith v. Mackin, S.W.3d 503, 509 (Tex. App. –
Houston [14th Dist.] 2007, no pet.). The statement must be communicated in such a
way that a third person is capable of understanding and did understand its
27
defamatory meaning. Id. A false statement of opinion is actionable, if the opinion
is known to be false by the speaker, and the speaker has special knowledge of past
or present facts that the other party does not. Italian Cowboy Partners, Ltd. v.
Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011); Transport Ins. Co. v.
Faircloth, 898 S.W.2d 269, 276 (Tex. 1995); O’Brien v. Daboval, 388 S.W.3d
826, 840 (Tex. App. – Houston [1st Dist.] 2012, no pet.). See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19 (1990) (speaker who says “In my opinion, Jones is a
liar” implies knowledge of facts that lead to the conclusion stated); Bentley v.
Bunton, 94 S.W.3d at 579. Even if Appellant states the facts upon which she bases
an actual opinion, if those facts are either incorrect or incomplete, or if her
assessment of them is erroneous, the opinion may still imply a false assertion of
fact. Id.
Section 73.001 of the Texas Civil Practice and Remedies Code sets out the
elements of statutory libel. “A libel is a defamation expressed in written or other
graphic form…that tends to injure a living person’s reputation and thereby expose
the person to public hatred, contempt or ridicule or financial injury or to impeach
any person’s honesty, integrity, virtue, or reputation or to publish the natural
defects of anyone and thereby expose the person to public hatred, ridicule, or
financial injury.” TEX. CIV. PRAC. & REM. CODE § 73.001.
28
Appellant is not a media defendant, thus the rule of Gertz v. Robert Welch,
Inc., 418 U.S. 323, 347, 94. S. Ct. 2997, 41 L. Ed. 2d 789 (1974), requiring fault in
a defamation action by an individual against a publisher or broadcaster for a
defamatory statement, is not applicable. Peshak v. Greer, 13 S.W.3d 421, 425-26
(Tex. App – Corpus Christi 2000, no pet.). “Proof of the publication of the false
injurious statement is sufficient without any necessity of showing a particular
mental state, for one is assumed to intend to make the statement that issues from
his mouth or pen.” Id. At 426. Nor must Appellees prove that the defamatory
statements are false as part of their prima facie case. See Philadelphia Newspapers,
Inc. v. Hepps, 475, U.S. 767, 776-77, 106 S. Ct. 1558, 1564, 89 L. Ed. 2d 783
(1986) (holding common-law presumption that defamatory speech is false cannot
stand when plaintiff sues media defendant for speech of public concern); Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-61, 105 S. Ct.
2939, 2945-46, 86 L. Ed. 2d 593 (1985) (allowing common-law presumption of
falsity to exist for private issues involving private non-media parties). To maintain
a defamation cause of action, the plaintiff must prove that the media defendant (1)
published a false statement; (2) that was defamatory concerning the plaintiff; (3)
while acting with either actual malice, if the plaintiff was a public official or public
figure, or negligence, if the plaintiff was a private individual, regarding the truth of
the statement. Hearst Corp. v. Skeen, 159 S.W.3d 633, 636-37 (Tex. 2005) (per
29
curiam); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). For a statement to be
actionable in defamation, it must expressly or impliedly assert facts that are
objectively verifiable. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S. Ct.
2695, 2706, 111 L. Ed.2d 1, 18 (1990). Whether a publication is an actionable
statement of fact is a question of law and depends on its verifiability and the
context in which it was made. See Bentley v. Bunton, 94 S.W.3d 561, 583-87 (Tex.
2002).
5. Clear and specific evidence established a prima facie case for each
element of defamation per se.
Appellant’s statements are defamatory per se when they are so obviously
hurtful to the person aggrieved that no proof of their injurious character is required
to make them actionable. Hancock, 400 S.W.3d at 64 (character of the defamatory
words and the circumstances of publication make it all but certain that serious
harm has resulted in fact) (citing Dun & Bradstreet, Inc. 472 U.S. at 760). False
statements that charge the commission of a crime or impute sexual misconduct
meet this requirement, as do injury to a person’s office, business, profession, or
calling. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814 (Tex. 1969);
Marshall v. Mahaffey, 974 S.W.2d 942, 950 (Tex. App. – Houston [14th Dist.]
2011, no pet.). “[A]n allegedly defamatory publication should be construed as a
whole in light of the surrounding circumstances based upon how a person of
30
ordinary intelligence would perceive it.” Turner v. KTRK TV, Inc., 38 S.W.3d 103,
114 (Tex. 2000). This is an objective test. New Times, Inc. v. Isaacks, 146 S.W.3d
144, 157 (Tex. 2004).
When the statement is defamatory per se, the law presumes the existence of
some actual damages, requiring no independent proof of general damages. See
Shearson Leham Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex. App – Corpus
Christi 1991, writ dism’d w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477,
488 (Tex. App – Corpus Christi 1989, writ denied); City of Brownsville v. Pena,
716 S.W.2d 677, 682 (Tex. App – Corpus Christi 1986, no writ); First State Bank
v. Ake, 6056 S.W.2d 696, 702 (Tex. App – Corpus Christi 1980, writ ref’d n.r.e.).
The jury is given wide discretion in its estimation of the amount of damages. West
Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex. Civ. App – Austin 1942,
no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex. Civ. App – Dallas 1919, writ
dism’d). Compensatory damages allowable for defamation include general
damages such as mental anguish, injury to reputation and the like that naturally
flow from the libel and are not easily susceptible to monetary valuation. Id.
While not required to prove that the defamatory statements were false, or
were made with malice, Appellees presented clear and specific evidence of these
elements as well. Appellees clearly and specifically stated that the accusations
were false, were fabricated, and were lies.
31
That post expressly names each Appellee is of no consequence if the
statement indirectly refers to Appellees. See Cox Tex. Newspapers, L.P. v. Penick,
219 S.W.3d 425, 433 (Tex. App – Austin 2007, pet. denied). It is not necessary
that every reader understands who Appellant is defaming, so long as there are
some who reasonably do. Davis v. Davis, 734 S.W.2d 707, 711 (Tex. App –
Houston [1st Dist.] 1987, writ ref’d n.r.e.).
Appellee testified that she is deeply embarrassed and suffering distress,
causing her physical and mental wellbeing to decline. (Appellee’s Affidavit CR
Page 237-38). Appellee testified that Appellant’s statements have frightened her
and exacerbated her medical conditions; she is emotionally distressed, she
experiences bouts of anxiety. She suffers from despair and public humiliation.
The evidence is clear, specific, and more than sufficient to make a prima
facie case. See Hancock v. Variyam, 400 S.W.3d at 69 (sufficient evidence of
mental anguish where plaintiff experienced embarrassment in the community
where he spent almost all of his life, distress, lost sleep, depression, a major change
in demeanor, and would never be the same and his family was disrupted, his
children were distressed at school and everywhere he went people would stop and
say they heard he had been called corrupt, even though most of these people were
well- meaning). Appellant’s argument that medical care was not sought does not
diminish the fact that a prima facie case was made. Miranda v. Byles, 390 S.W.3d
32
at 556 (evidence that plaintiff had not sought counseling or medication does not
prove he did not suffer mental anguish, it only means he did not seek counseling or
medication as a result).
6. Clear and specific evidence established a prima facie case for each
element of intentional infliction of emotional distress cause of action.
To recover damages for intentional infliction of emotional distress, a
plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2)
the defendant’s conduct was extreme and outrageous; (3) the defendant’s action
caused the plaintiff emotional distress; and (4) the resulting emotional distress was
severe. Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
Extreme and outrageous conduct is conduct so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community. Id. Intent
can be inferred either from the circumstances and Appellant’s conduct as well as
from Appellant’s overt expressions. Toles v. Toles, 45 S.W.3d 252, 260 (Tex.
App.-Dallas 2001, pet. Denied); Twyman v. Twyman, 855 S.W.2d 619, 623 (Tex.
1993).
Appellant’s false statements that Appellee was a prostitute go far beyond the
bounds of decency and are atrocious and utterly intolerable in a civilized
community.
33
7. Clear and specific evidence established a prima facie case for each
element of the invasion of privacy cause of action.
The elements of the tort of invasion of privacy are (1) publicity given to
matters concerning one’s personal life; (2) the publication of which would be
highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter
publicized is not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915
S.W.2d 471, 473-74 (Tex. 1995) (citing Industrial Found. Of the South v. Texas
Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976), cert. denied, 430 U.S. 931,
51 L.Ed.2d 774, 97 S. Ct. 1550 (1977)).
The rule stated in this Section applies only to publicity given to matters
concerning the private, as distinguished from the public, life of an individual.
…Every individual has some phases of his life and his activities and some facts
about himself that he does not expose to the public eye, but keeps entirely to
himself or at most reveals only to his family or to close personal friends. Sexual
relations, for example, are normally entirely private matters, as are family
quarrels, …most details of a man’s life in his home…
RESTATEMENT 2ND TORTS, § 652D, cmt.; see also Diamond Shamrock
Refining & Mktg. Co. v. Mendez, 844 S.W.2d 198, 203 (Tex. 1992) (Hightower, J.,
concurring) (recognizing that the right of individual privacy is implicit among the
general, great, and essential principles of liberty).
34
Reviewing the record in alight favorable to Appellees establishes the
minimum quantum of clear and specific evidence to support a rational inference
that the allegations of fact as to each essential element of the claim are true, if no
contrary evidence is offered. Better Business Bureau of Metro Houston, 2013 Tex.
App. LEXIS 8756 *14; Crazy Hotel Assisted Living, Ltd., 2013 Tex, App. LEXIS
5407 *16-17.
CONCLUSION
Texas Citizen Participation Act does not insulate Appellant from responsibility
from her speech and conduct in this case. Knowingly making false statements of
face to injure another is not a constitutionality protected speech. Appellee’s claims
are merit and they should be allowed to proceed to trial.
PRAYER
Appellee respectfully prays that the Court (1) deny all relief sought by appellant in
her brief, (2) affirm the denial of Appellant’s Motion to Dismiss in all respects, and
(3) grant all other appropriate relief to Appellee.
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Respectfully submitted,
By: /s/Chris Carmona
Chris Carmona
Attorney at Law
SBN: 24072022
Law Office of Chris Carmona
PO Box 7137
Houston, TX 77248
832-444-4293 ph
832-460-2724 fax
Email:
chris@carmonalawoffice.com
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CERTIFICATE OF COMPLIANCE
PURSUANT TO T.R.A.P.9.4(I)(3), I CERTIFY THAT THE NUMBER OF WORDS IN
THIS BRIEF OF APPELLEE, EXCLUDING CONTENT PURSUANT TO
T.R.A.P.9.4(I)(1), REPORTED STATED IN THE COMPUTER PROGRAM USED TO
PREPARE THE DOCUMENT, IS 8,119.
/s/Chris Carmona
CHRISTOPHER CARMONA
CERTIFICATE OF SERVICE
I CERTIFY THAT THE FOREGOING BRIEF OF APPELLEE WAS
ELECTRONICALLY FILED WITH THE CLERK OF THE COURT USING THE
ELECTRONIC CASE FILING SYSTEM OF THE COURT. I ALSO CERTIFY THAT A
TRUE AND CORRECT COPY OF THE FOREGOING WAS SERVED BY CERTIFIED
MAIL WITH RETURN RECEIPT ON APPELLANT.
/s/Chris Carmona
CHRISTOPHER CARMONA
Mariann Bacharach
PO Box 8217
Houston, TX 77288
CMR No.: 7014 0510 0000 2482 1098
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APPENDIX
TRIAL COURT JUDGMENT…………………………………………………..39
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