ACCEPTED
14-14-00942-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
10/22/2015 11:07:03 PM
CHRISTOPHER PRINE
CLERK
14-14-00942-CV
FILED IN
======================================================================================================
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE FOURTEENTH COURT OF APPEALS 10/22/2015 11:07:03 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
==========================================================
Aloysius Duy-Hung Hoang
aka Hoang Duy Hung,
Appellant
vs.
Thinh Dat Nguyen
Thoi Bao Houston,
Thoi Bao,
Appellees
--------------------------------------------------------------------------------
Appeal from the 215th Judicial District Court
Houston Harris County, Texas
---------------------------------------------------------------------------------
APPELLANT's AMENDED BRIEF
----------------------------------------------------------------------------------------------------
Aloysius Duy-Hung Hoang
Pro se
State Bar number 2400-2295
801 Congress St #350
Houston TX 77002
Tel. 281-788-8486
Fax 713-224-3111
Email: Alhoang77072@Gmail.com
ORAL ARGUMENT IS NOT REQUESTED
******************************************************************************
1
IDENTITY OF PARTIES AND COUNSEL
Appellant/Plaintiff
Aloysius Duy-Hung Hoang aka Al Hoang aka Hoang Duy Hung
Counsel for Appelant
Al Hoang, pro se
Appellees/Defendants
Thinh Dat Nguyen, an individual.
Thoi Bao Houston, a Vietnamese magazine published in Houston.
Thoi Bao, a Vietnamese Magazine published in Canada and
the United States of which Houston Thoi Bao is a
part of the chain.
Counsel for Appellees
Mark Bennettt
SBN 0079-2970
Bennett & Bennett
917 Franklin Street, Fourth Floor
Houston TX 77002
Tel. 713-224-1747
Email: mb@ivi3.com
2
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................. 2
INDEX OF AUTHORITIES ...................................................................... 4
STATEMENT OF THE CASE .................................................................. 5
ISSUES PRESENTED .............................................................................. 6
STATEMENT REGARDING ORAL ARGUMENT ............................... 7
STATEMENT OF FACTS ................................ ..................................... 8
SUMMARY OF ARGUMENT ............................................................... 12
ARGUMENTS ..................................................................................... 12
First issue ........................................................................... 12
Second issue ................................................................. 16
Third issue ........................................................................... 18
Fourth issue ................................................................. 20
CONCLUSION AND PRAYER ............................................................... 21
CERTIFICATE OF COMPLIANCE ......................................................... 22
CERTIFICATE OF SERVICE .................................................................. 22
APPENDIX
1. COURT'S RECORD [CR]
2. REPORTER'S RECORD [RR]
3
INDEX OF AUTHORITIES
PAGE
STATUTES:
1. Texas Citizens Participation Act (the "Texas Anti-SLAPP statute")
Texas Civil Practice & Remedies Code, Chapter 27 ..................... 12
2. Texas Civil and Remedy Code, Sec. 154.073 (a) ......................... 21
CASES:
Hearst Corp. vs. Skeen, 130 S.W. 3d 910 (Tex. App. 2004) ..... 13
Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655
(Tex. 1987) ...................... 12
Spanel et al. vs Pegler, 160 F (2d) 619, A.L.R. 699 (Fed. Ct., 1947) ..... 18
INDEX OF AUTHORITIES FOR REFERENCE
Burrell vs. Moran et al, 82 N.E. (2d) 334 (Ohio, 1948) ...... 18
Hoai Thanh vs. Hien Thi Ngo and Vietnamese Public Radio Inc.,
CASE No: AW 05 CV 3420 ........... 19
Bui vs. Do, D-1-GN-09-001567 in Travis County ............. 20
Nguoi Viet News, Inc., vs. Saigon Nho Newspapers,
30-2012-00595526 in the Superior Court of Orange County, California 20
4
TO THE HONORABLES FOURTEENTH COURT OF APPEALS:
STATEMENT OF THE CASE
Nature of the case This is an appeal from the Trial Court Motion To
Dismiss brought by Appellees. On October 13,
2014, Appellant filed a Defamation lawsuit
against Appellees. [CR. 4]. On October 21, 2014,
Appellees filed the Answer and Motion To
Dismiss. [CR. 15].
Trial Court 215th Judicial District Court of Harris County, TX.
Trial Court's disposition On November 18, 2014, the Trial Court Granted
Defendants' Motion to Dismiss based on Texas
Citizens Participation Act (the "Texas Anti-
SLAPP statute"), Texas Civil Practice &
Remedies Code, Chapter 27. [CR 323]
5
ISSUES PRESENTED
I. Did the District Court err in holding that Defendants are entitled to
dismissal under the Texas Citizens Participation Act (the "Texas Anti-
SLAPP statute"), Texas Civil Practice & Remedies Code, Chapter 27
when there are sufficient elements to show Defendants fabricated facts to
libel Plaintiff?
II. Did the District Court err when not considering Plaintiff's affidavit in the
Original Petition as prima facie facts to establish elements of a
Defamation case?
III. Did the District Court err when considering the label of someone as a
"Communist," "Spy for the Communist," or "Communist Sympathizer"
in an anti-Communist community like the Vietnamese Community as
"may be wrongheaded, but is not illegal or disgraceful?"
IV. Did the District Court err when considering previous lawsuits filed by
Plaintiff to various individuals in the last 10 years and later on through
mediations dismissed them as a basis for dismissal in this case?
6
STATEMENT REGARDING ORAL ARGUMENT
Appellant/Plaintiff does not request an oral argument.
7
STATEMENT OF FACTS
"CR" means the Court's Record on Appeal.
"RR" means the Reporter's Record.
Appellee Thinh Dat Nguyen is a Texas resident. Thoi Bao Magazine is a
Vietnamese weekly magazine which has branches in Canada and in the United
States. Thoi Bao Houston Magazine is its branch in Houston. Nguyen is the
Editor-in-chief of Thoi Bao Houston and Thoi Bao in Texas. [CR 5].
In 2010, after Hoang was elected as Houston District F City
Councilmember, Hoang was invited to Nguyen's house for dinner. During dinner,
Hoang disclosed that Hoang was invited by Houston Airport System Director
Mario Diaz to accompany him to Vietnam. Nguyen then ordered Hoang: "I order
you not to go to Vietnam. If you go, I will mobilize Thoi Bao to destroy you, to
take your council seat away." An argument broke out between Hoang and Nguyen,
Hoang left the house. After this event, almost in every issue of Thoi Bao, Nguyen
labeled Hoang as a Vietnamese Communist, an agent of the Vietnamese
Communist, or a spy of the Vietnamese Communist. [CR.6]
Sometime in October, 2012, Vice Minister of Vietnam, Mr. Nguyen Thanh
Son, visited Houston. Mayor Anise Parker and her Administration, with Hoang,
welcomed the Delegation. A Forum was opened for Vietnamese freedom fighters
to come and make pressure on Vietnam to honor human rights as well as open up
8
the door for multi-party system. Nguyen twisted the facts to label Hoang as
Vietnamese Communist Spy or an arm of the Vietnamese Communist to "sabotage
the Vietnamese Community in Houston and abroad." Nguyen did not libel Anise
Parker and her Administration as Communists. Because of such libel, many
Vietnamese people, especially the seniors who do not read English and read only
Vietnamese, believe that Hoang is a Communist, and they organized protests in
front of Hoang's residence and a cocktail bomb threat was put in front of Hoang's
house. [CR 7].
In early 2013, on behalf of the City of Houston, Hoang made a tour to Asia
countries such as Japan, Taiwan, Indonesia, and Vietnam to enhance the business
relationship of those countries with Houston and the Port of Houston. Nguyen
ignored the trips to Indonesia, Taiwan, and Japan to concentrate only on the trip to
Vietnam to libel Hoang as Vietnamese Communist working for the Vietnamese
Communist government. [CR 7].
Hoang publicly announced numerous times that he would welcome for an
open interview or debate. Nguyen and his group ignored. [CR 8 and RR 9 lines 22
- 25]
Hoang won the Republican primary in 2014 to run for State Representative
District 149. Nguyen had articles to support the Democratic candidate Hubert Vo.
9
Again, almost every issue, Nguyen libeled Hoang as a Vietnamese Communist.
[CR 7].
In issue 412 of early October, 2014, Nguyen ran the headline "NOT VOTING
FOR HOANG DUY HUNG" whereby he also turned the facts so that the readers
understand that because Hoang is a Communist, Hoang's father in 2007 committed
suicide by jumping into the moving truck. In fact, Hoang's father died because of
an undocumented immigrant who ran the red light and hit Hoang's father, he was
taken to Ben Taub and died. [CR. 8].
In issue 413, midst of October, 2014, a week before the early voting of the
General Election, Nguyen ran the headline "UNMASK THE SPY FACE OF
HOANG DUY HUNG" whereby Nguyen published at least three false statements
about Hoang. Nguyen published statements affirming that Hoang is "a
Communist," "an insider working for the Vietnamese Communist regime,"
"planned a scheme to put a death threat bomb killing him and his family members
at his house and then called the police to blame on Vietnamese Nationalist
activists, afterward he took the pictures to take credit with the Vietnamese
Communists," and "his father was so shameful of the betrayal son whereby he
committed suicide by jumping himself to the oncoming 18-wheeler." [CR. 8 and
Affidavit CR 12].
10
After Plaintiff filed the Answer to Defendant's Motion to Dismiss, on
November 10, 2014, Nguyen published a statement on the Vietnamese e-forums as
follows: "I was sued for calling a communist a communist." Then he asked
supporters to come to Court to "witness the fighting spirit against the
Communist of the Vietnamese People Abroad, the victims of the Communist."
[CR. 123. RR 2 line 11-13].
11
SUMMARY OF THE ARGUMENT
The trial Court erred in dismissing the case in ruling that "the legal action
was brought to deter or prevent the Defendants from exercising Constitutional
rights and was brought for an improper purpose, including to harass or to cause
unnecessary delay or to increase the cost of litigation." [CR 323]. Constitutional
rights are the rights to opine, but not the rights to fabricate facts libeling other
person, and this is not protected either by the Constitution or by Texas Anti-Slapp
Statute.
ARGUMENT
I. Did the District Court err in holding that Defendants are
entitled to dismissal under the Texas Citizens Participation
Act (the "Texas Anti-SLAPP statute"), Texas Civil Practice
& Remedies Code, Chapter 27 when there are sufficient
elements to show Defendants fabricated facts to libel
Plaintiff?
Does TCPR Chapter 27 applied to an Editor-in-chief of a magazine who
almost every issue labels Plaintiff a Communist flaring hatred within an Anti-
Communist Community against Plaintiff? The Legislature intent when passing
12
this Statute was to protect an individual to speak out the opinion on public issue by
writing to the Editor of a newspaper, testifying before the Legislature, reporting
official misconduct, circulating a Petition, or posting a comment on the internet. It
is quite ambiguous on the Legislature intent whether it should be applied to an
Editor-in-chief of a magazine in this matter.
If TCPR Chapter 27 applied to Nguyen, then whether Nguyen is protected
under the Statute when Hoang can prove on prima facie the elements of
Defamation?
The elements of Defamation are: 1. Defendant published a statement; 2. that
was defamatory concerning the Plaintiff; 3. while acting with either actual malice,
if the Plaintiff was a public figure, or negligence, if the Plaintiff was a private
individual, regarding the truth of the statement. Hearst Corp. vs. Skeen, 130 S.W.
3d 910 (Tex. App. 2004), review granted, judgment rev'd., 159 S.W. 3d 633 (Tex.
2005). In Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655 (Tex.
1987), the Court stated that "to prove an action for defamation, the statement must
also be false."
1. Statement of facts published by Defendants concerning Plaintiff: In
this case, Nguyen published at least three false statements about Hoang. Nguyen
published statements affirming that Hoang is "a Communist," "an insider working
for the Vietnamese Communist regime," "planned a scheme to put a death threat
13
bomb killing him and his family members at his house and then called the police to
blame on Vietnamese Nationalist activists, afterward he took the pictures to take
credit with the Vietnamese Communists," and "his father was so shameful of the
betrayal son whereby he committed suicide by jumping himself to the oncoming
18-wheeler." [CR 121]. Defendant never stated that it was his opinion, but he
stated them as facts in the affirmative tone.
2. The statements are false and defamatory: Hoang came to the United
States in 1975 when Plaintiff was 13. After graduating from the University of
Houston, in 1990, Hoang came back to Vietnam to fight against the Communist
and Hoang was imprisoned by the Vietnamese Communist for 16 months in
solitary confinement. In 1993, in order to have the normalization with the United
States, Vietnamese Communist had to release all U.S citizens of which Hoang was
one of them. In November 2007, Hoang was elected as President of the
Vietnamese Community of Houston & Vicinities. In 2009, Hoang was elected as
Houston District F City Councilmember. [CR 115].
After September 11, 2001, Hoang changed the strategy in fighting against
the Communist. Hoang sees that there is no way to use force to overthrow the
Communist regime; therefore, Hoang promote "open dialogue" to make pressure
on Vietnam to honor human rights and to have political change. [CR 116].
14
In the capacity as the City elected official, together with the Mayor, Hoang
welcomed a Delegation from Vietnam, opened up a Forum for Vietnamese
Freedom Fighters to pressure on Vietnam for political changes and honoring
human rights [CR 7]. In early 2013, as a city elected official, Hoang visited 4
Asian countries to promote economic growth for the City of Houston and Vietnam
was one of the four countries. [CR. 7].
Labeling Hoang as a "Communist" or "insider working for the Communist
regime" is not only an insult, but also a defamation flaring hatred within an anti-
communist community against Hoang. Labeling Hoang to plan "a scheme to put a
death threat bomb killing him and his family members at his house and then called
the police to blame on Vietnamese Nationalist activists, afterward he took the
pictures to take credit with the Vietnamese Communists" [CR 121] is a defamation
turning a victim into the criminal mastermind. Making a false statement that "his
father was so shameful of the betrayal son whereby he committed suicide by
jumping himself to the oncoming 18-wheeler" [CR 121] is not only an insult to the
decedent and to Hoang, but also a defamation discrediting Hoang in the public's
eyes.
3. The statements are made with actual malice: Hoang has asked Nguyen
for a public debate, [CR 8], and if Nguyen can show a better way of fighting the
15
Vietnamese Communist, Hoang would immediately "kneel down and carry
Nguyen's shoes." [RR 9 lines 21-25].
In his Original Pleading, Hoang stated that Hoang has asked Nguyen "to
stop the such libel, and if Nguyen has any question, Hoang is happy to entertain a
public interview forum. Hoang also informed him that by FCC rules, Nguyen has
to give Hoang equal space to correct the facts and Nguyen ignored." [CR 8].
Hoang also notified the owner in Toronto, Canada, by email
davenguyent@gmail.com and left messages on the phone 416-624-7297 for him to
take appropriate steps but there was no return. [CR 8].
There are fabrications of facts here, not opinions, published by the Nguyen
that Hoang can show on prima facie the elements of Defamation. The Statute only
requires the Plaintiff to prove on "preponderance of the evidence," not "beyond a
reasonable doubt" and the Statute requires the elements of the evidence are to be in
the Pleading and/or in the Affidavits. Hoang had it in his Original Pleading along
with the Affidavit [CR 12].
II. Did the District Court err when not considering Plaintiff's
affidavit in the Original Petition as prima facie facts to
establish elements of a Defamation case?
In the Original Petition, Hoang also filed an affidavit stating that "all the
statements of facts in Plaintiff's Original Petition is true and they are within my
16
personal knowledge. Defendants Thinh Dat Nguyen, Thoi Bao Houston, and Thoi
Bao Magazine published false statements of facts to libel Al Hoang as a spy of the
Vietnamese Communist, Al Hoang is a Communist, Al Hoang is a Communist
Sympathizer, or Al Hoang is working for the interest of the Vietnamese Communist
Government. These false statements of facts are one of the factors leading to Al
Hoang's lost of 2013 Election and it could be the same for 2014 Election." [CR
12].
In answering Nguyen's Motion To Dismiss, Hoang also filed a certified
translation and the Affidavit of the translator as follows: "My name is Fawn D.
Nguyen. I am capable of making this affidavit. I am a certified translator from
Vietnamese to English and from English to Vietnamese. My Texas License number
is 930. The translation of Thoi Bao Magazine, issue 413, pages 36-37, the related
statements of the lawsuit, was under my supervision and I hereby certify that the
translation is true and correct from Vietnamese to English." [CR 121]
Nguyen, during the hearing of the Motion to Dismiss, claimed that there was
no affidavit filed by Hoang to support the elements of a defamation case. Whether
the Court took this into consideration to dismiss the case is unclear; yet, on the
contrary, the affidavit was made and was properly submitted in the Original
Petition. [CR 12].
17
III. Did the District Court err when considering the label of
someone as a "Communist," "Spy for the Communist," or
"Communist Sympathizer" in an anti-Communist community
like the Vietnamese Community as "may be wrongheaded, but
is not illegal or disgraceful?"
At the hearing of Nguyen's Motion to Dismiss, Nguyen's attorney turned in
the Brief. The Court should not take the Brief in consideration because it did not
provide Hoang a fair chance to answer [RR 13 lines 8-14]. In the Brief, Nguyen
stated "it may be wrongheaded, but is not illegal or disgraceful, to be a
communist." [CR 13] Maybe it is not disgraceful to various persons to be a
communist, but it is to Hoang.
Half a century ago, in the United States, to label a person as a Communist, is
libel per se: "The fact that it may be legal to be a Communist or a Communist
sympathizer does not prevent such a charge from being libelous per se, as a
publication need not impute a crime to constitute a libel." Spanel et al. vs Pegler,
160 F (2d) 619, A.L.R. 699 (Fed. Ct., 1947). The Court in Burrell vs. Moran et
al, 82 N.E. (2d) 334 (Ohio, 1948), the Court also stated: ".. a large segment of our
populace attaches to the activities of Communists an odorous interpretation that
tends toward public aversion." After the Fall of Communism in Eastern Europe
and in the Soviet Union in the late 1980's and early 1990's, that kind of sentiment
18
may not be that deepened in the hearts of mainstream Americans, but it exists in
minority communities such as Vietnamese Community who has recently fled from
Communism and Vietnam is still under the yoke of Communist regime.
For the past 40 years, many folks who were misunderstood as "Communist"
or "Communist sympathizer" in the Vietnamese Community were murdered or
were threatened to death. In December 2012, after Hoang was labeled as a
"Communist," there were couples of demonstration in front of Hoang's residence
and immediately there was a death-threat cocktail bomb was placed at Hoang's
door [CR 7].
In the Vietnamese Community, a person is to be labeled or to be
misunderstood as a Communist, the livelihood of that person and family members
are in jeopardy, that person could hardly advance further to higher status. Because
Hoang was labeled and/or misunderstood as a Communist, Hoang lost the Election
in 2013 to a no-name at that time, Richard Nguyen [CR 7]
Understanding the situation to be labeled as a Communist in the Vietnamese
Community, Courts all over the United States took the matter seriously and
allowed cases to go to trial. In Virginia, Hoai Thanh vs. Hien Thi Ngo and
Vietnamese Public Radio Inc., CASE No: AW 05 CV 3420, in the Federal
District Court, on October 21, 2011, the case was tried, the Court awarded $1
million punitive damages to Plaintiff for being called as a "Communist." Likewise,
19
in Texas, after the Anti-Slapp Law was in effective, in the case of Bui vs. Do, D-1-
GN-09-001567 in Travis County, on October 27, 2011, the Court granted 1.9
punitive damages in favor of Plaintiff because Defendant Michael Do labeled
Plaintiff Nancy Bui as a Communist or a Communist sympathizer. In the case of
Nguoi Viet News, Inc., vs. Saigon Nho Newspapers, 30-2012-00595526 in the
Superior Court of Orange County, California, On December 30, 2014, a Jury of
12 awarded the Plaintiffs $3,000,000 in damages and $1,500,000 in punitive
against Defendants for labeling Plaintiffs as Communist agents or Communist
sympathizers.
IV. Did the District Court err when considering previous
lawsuits filed by Plaintiff to various individuals in the last 10
years and later on through mediations dismissed them as a
basis for dismissal in this case?
In the Motion to Dismiss, Nguyen asserted that Hoang in the last over 10
years, filed a couple of lawsuits and dismissed them. The facts and issues in those
cases are different. Those cases went through mediation, Defendants either agreed
to issue either an apology or Statements of Corrections, such as Defendant Free
Vietnam Government issued the Letter of Correction [CR 36], Defendant Anh Tai
20
Nguyen issued the Letter of Apology [CR 50], and to promote harmony, in
accordance to mediation rule, Hoang dismissed the cases. [RR p. 7]. Dismissing
lawsuits in accordance to Mediation Procedure cannot be used as a ground for the
Court dismissing this case. See Texas Civil and Remedy Code, Sec. 154.073 (a).
CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS.:
"Except as provided by Subsections (c), (d), (e), and (f), a communication relating
to the subject matter of any civil or criminal dispute made by a participant in an
alternative dispute resolution procedure, whether before or after the institution of
formal judicial proceedings, is confidential, is not subject to disclosure, and may
not be used as evidence against the participant in any judicial or administrative
proceeding."
CONCLUSION AND PRAYERS
The Trial Court's decision in dismissing the case sent out a wrong message to
the Community that Freedom of Speech also includes freedom to make up facts
libeling people. WHEREFORE, as premises considered, Appellant Al Hoang
respectfully requests the Court to reverse the Trial Court's decision, grant
Appellant an opportunity to have a fair trial, grant appellant such other and further
21
relief, at law or in equity, to which Appellant may by this pleading or proper
amendment thereto show himself justly entitled.
Respectfully submitted
_____________________________
Hoang & Associates
Aloysius Duy-Hung Hoang
State Bar No. 24002295
801 Congress St. #350
Houston, TX 77002
Telephone: 713/229-8900
Telecopier: 713/224-3111
pro se
CERTIFICATE OF COMPLIANCE
I certify that the word count in this entire document is 3545
________________________________
Al Hoang
CERTIFICATE OF SERVICE
I, Al Hoang, hereby certify that a true and correct copy of the above and
foregoing was served in accordance with the Texas Rules of Civil Procedure on all
counsel of record by placing same in the United States mail, certified mail, return
receipt requested, by hand delivery or by telecopier, on this the 22nd day of
October, 2015.
_________________________________
Al Hoang
22
APPENDIX 1
ORIGINAL CLERKS RECORD
VOLUME I FILED IN
14th COURT OF APPEALS
APPELLATE COURT NO. 14-14-00942-CV HOUSTON, TEXAS
2/3/2015 11:49:24 AM
CHRISTOPHER A. PRINE
ALYOSIUS HOANG AKA HOANG DUY HUNG Clerk
APPELLANT(S)
VS. TRIAL COURT NO. 2014-59665
THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
APPELLEE(S)
FROM THE 215TH District Court of Harris County, at Houston, Texas
HON. ELAINE PALMER, JUDGE PRESIDING.
Applied for by ALOYSIUS DUY-HUNG HOAN on 24TH day of NOVEMBER A.D., 2014 and delivered to the “FOURTEENTH”
COURT OF APPEALS A.D., 2014.
CHRIS DANIEL
Harris County, District Clerk
By: /s/PHYLLIS WASHINGTON
PHYLLIS WASHINGTON, Deputy
Attorney for Appellant:
ALOYSIUS DUY-HUNG HOAN
HOANG & ASSOCIATES
801 CONGRESS STE 350
HOUSTON, TX 77002
Attorney for Appellee:
MARK WILLIAM BENNETT
ATTY AT LAW
917 FRANKLIN ST 4TH FLR
HOUSTON, TX 77002
1
INDEX
ALYOSIUS HOANG AKA HOANG DUY HUNG
VS. NO. 2014-59665 #14-14-00942-CV
THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
PAGE
COVER PAGE VOLUME I............................................................................................................................ 1
INDEX ................................................................................................................................................................ 2
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR TEMPORARY INJUNCTION
ORDER FILED OCTOBER 13, 2014................................................................................................................ 4
AL HOANG’S AFFIDAVIT ........................................................................................................................... 12
MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT
FILED OCTOBER 21, 2014............................................................................................................................... 15
ANSWER FILED OCTOBER 21, 2014 ............................................................................................................ 18
NOTICE OF HEARING ON PLAINTIFF’S AMENDED MOTION TO DISMISS
UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED OCTOBER 27, 2014 ............................ 20
AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT WITH
EXHIBITS FILED OCTOBER 27, 2014 ........................................................................................................... 21
EXHIBIT A ........................................................................................................................................................ 26
EXHIBIT B ........................................................................................................................................................ 34
EXHIBIT C ........................................................................................................................................................ 40
EXHIBIT D ........................................................................................................................................................ 46
EXHIBIT E ........................................................................................................................................................ 56
EXHIBIT F ........................................................................................................................................................ 104
EXHIBIT G ........................................................................................................................................................ 106
EXHIBIT H ........................................................................................................................................................ 111
PLAINTIFF’S ANSWER TO DEFENDANTS MOTION TO DISMISS WITH AFFIDAVIT
FILED NOVEMBER 10, 2014........................................................................................................................... 115
FAWN D. NGUYEN’S AFFIDAIT ................................................................................................................ 120
PLAINTIFF’S SUPPLEMENTAL ANSWER TO DEFENDANTS MOTION TO DISMISS
FILED NOVEMBER 13, 2014........................................................................................................................... 123
PROPOSED ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS
UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED NOVEMBER 14, 2014 ........................ 129
BRIEF IN SUPPORT OF AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS
PARTICIPATION ACT WITH ATTACHMENTS FILED NOVEMBER 14, 2014....................................... 130
AFFIDAVIT OF THINH DAT NGUYEN .................................................................................................... 140
CASE LAW........................................................................................................................................................ 142
CASE LAW........................................................................................................................................................ 161
CASE LAW........................................................................................................................................................ 167
CASE LAW........................................................................................................................................................ 172
CASE LAW........................................................................................................................................................ 194
CASE LAW........................................................................................................................................................ 257
CASE LAW........................................................................................................................................................ 264
CASE LAW........................................................................................................................................................ 268
CASE LAW........................................................................................................................................................ 278
CASE LAW........................................................................................................................................................ 299
CASE LAW ........................................................................................................................................................ 311
2
INDEX
ALYOSIUS HOANG AKA HOANG DUY HUNG
VS. NO. 2014-59665 #14-14-00942-CV
THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
PAGE
ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS
PARTICIPATION ACT SIGNED NOVEMBER 18, 2014 .............................................................................. 323
TRIAL COURT ACTIVITY INQUIRY SHEETS............................................................................................. 324
TRIAL COURT ELECTRONIC DOCKET SHEET........................................................................................ 325
NOTICE OF APPEAL BY ATTORNEY ALOYSIUS DUY-HUNG HOANG
FILED NOVEMBER 24, 2014........................................................................................................................... 326
COVER PAGE TO NOTICE OF APPEAL ................................................................................................. 328
CERTIFICATE ................................................................................................................................................... 329
BILL OF COSTS ................................................................................................................................................ 330
COMPLETE ORIGINAL CLERKS RECORD. PW
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JURN7 (NSA#) JUSTICE INFORMATION MANAGEMENT SYSTEM JAN 16, 2015(C1)
ACT50 CIVIL COURT ACTIVITY OPT: _____ - ACT
GENERAL INQUIRY PAGE: 1 - 1
CASE NUMBER: 201459665__ POST JUDGMENT NUMBER> __ CURRENT COURT: 215 PUB? _
CASE TYPE: LIBEL_____________________ CASE STATUS: CASE ON APPEAL____________
STYLE: HOANG, ALOYSIUS (AKA AL HOANG AKA VS. THOI BAO MAGAZINE_______________
SEQ ACT PJN
DATE NUM CODE DESCRIPTION PJN COURT INS>
_ 11/18/2014 2____ 11A__ _ DISMISSED ON DEFENDANT'S MOTION__ __ 215 1__
IMAGE NUM: 63220552________ PGS: 1___ LCD: 11182014 CLERK: SPENCER, JEANETT
_ 11/18/2014 1____ PC___ _ PLAINTIFF COSTS _________________ __ 215 1__
LCD: 11182014 CLERK: SPENCER, JEANETT
==> *** (2) RECORDS FOUND ***
1=NOTICE INQ 2=SETTING INQ 3=ACT ENTRY 4=PARTY INQ 5=MIN. INQ.
6=CASE. SUMM. 7=BACKWARD 8=FORWARD 10=REFRESH 11=HELP
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CERTIFICATE
R
THE STATE OF TEXAS
COUNTY OF HARRIS
I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above and
foregoing are true and correct copies of all the proceedings directed by Counsel and/or Rule 34 to be included in the Original Clerks
Record in the Cause of
ALYOSIUS HOANG AKA HOANG DUY HUNG
VS. NO. 2014-59665
THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
as the same appear from the originals now on file of record in this office.
GIVEN under my hand and seal of said Court at office in the City of Houston, on the 20TH day of JANUARY A.D., 2015
CHRIS DANIEL,
CLERK DISTRICT COURT,
HARRIS COUNTY, TEXAS
BY: /s/ PHYLLIS WASHINGTON
PHYLLIS WASHINGTON, DEPUTY
AP4 R04-30-92
329
BILL OF COSTS
APPELLATE COURT NO. 14-14-00942-CV
THE STATE OF TEXAS
COUNTY OF HARRIS
ALYOSIUS HOANG AKA HOANG DUY HUNG
APPELLANT(S)
VS. TRIAL COURT CASE NO. 2014-59665
THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO
APPELLEE(S)
TO OFFICERS OF COURT,
CLERK'S COSTS
ORIGINAL CLERKS RECORD $330.00
TOTAL $ $330.00
THE STATE OF TEXAS
COUNTY OF HARRIS
I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above is a
Correct Bill of all Costs incurred in preparation of the above numbered and entitled suit up to this date.
IN WITNESS WHEREOF, I, hereunto affix my hand and seal of the Court at office in Houston, Texas this 20TH day of
JANUARY A.D., 2015.
CHRIS DANIEL,
CLERK DISTRICT COURT,
HARRIS COUNTY, TEXAS
BY: /s/ PHYLLIS WASHINGTON
PHYLLIS WASHINGTON, DEPUTY
Revised July 12, 2012
330
APPENDIX 2
1
1 CAUSE NO. 2014-59665
2
)
3 ALOYSIUS HOANG ) IN THE DISTRICT COURT
)
4 )
PLAINTIFFS, )
5 )
VS. )
6 ) HARRIS COUNTY, TEXAS
)
7 TOI BAG OF HOUSTON )
)
8 )
)
9 DEFENDANTS. ) 215TH JUDICIAL DISTRICT
10
11
12
13
14
15 MOTION TO DISMISS
TEXAS CITIZENS PARTICIPATION ACT
16
17
18
19
20 On December 8, 2015, the following proceedings
21 came on to be heard in the above-entitled and numbered cause
22 before the Honorable, Elaine E. Palmer, Judge presiding, held
23 in Houston, Harris County, Texas.
24 Proceedings reported by machine shorthand and
25 computer-aided transcription.
KAREN D. DESHETLER, CSR
281-723-9090
2
1 APPEARANCES
2 FOR THE PLAINTIFF:
3 Mr. Aloysius Hoang
Attorney at Law
4 801 Congress St., Ste. 350
Houston, Texas 77002
5
6 FOR THE DEFENDANT:
7 Mr. Mark Bennett
Bennett & Bennett
8 735 Oxford Street
Houston, Texas 77007
9 713.224.1747
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KAREN D. DESHETLER, CSR
281-723-9090
3
1 INDEX
PAGE
2
By the Court........................................... 4
3
By Mr. Bennett......................................... 4
4
By Mr. Hoang........................................... 7
5
By Mr. Bennett......................................... 10
6
By Mr. Hoang........................................... 11
7
By Mr. Bennett......................................... 12
8
By Mr. Hoang........................................... 13
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KAREN D. DESHETLER, CSR
281-723-9090
4
1 THE COURT: Cause Number 2014-59665. Aloysius
2 Hoang versus Toi Bag Magazine.
3 MR. BENNETT: Good morning. I am Mark Bennett
4 for Mr. Nguyen and Toi Bag of Houston, which is the magazine.
5 We have a number of interested onlookers. Would you rather we
6 did it at the bench?
7 THE COURT: Yes.
8 MR. BENNETT: I also have a Vietnamese
9 interpreter for Mr. Nguyen if she may approach with us and Mr.
10 Nguyen.
11 THE COURT: Okay.
12 MS. LE: Good morning. I'm Thuy Le. I
13 represent the Defendant.
14 THE COURT: How do you spell your first Thuy,
15 T-H-U-Y and L-E.
16 MR. BENNETT: Your Honor, what we have today is
17 a Motion Under the Texas Citizens Participation Act to Dismiss
18 the Case for Legal Fees and Other Relief. We are having a
19 hearing rather than doing it by submission, because the statute
20 requires a hearing. But the statute also requires that the
21 Court consider the pleadings and the affidavits. So, it's not
22 a hearing to take evidence. It's just a hearing to be the
23 hearing to close out the evidence and then the Court has 30
24 days in which to rule on the motion. So, the Plaintiff has
25 filed some pleadings. The Defendants have filed some pleadings
KAREN D. DESHETLER, CSR
281-723-9090
5
1 and today filed two affidavits. I don't know if those show up
2 on your screen, yet. But this morning after coming to court we
3 filed my affidavit, which is on legal fees. That's the
4 affidavit of Mark Bennett. And affidavit of Mr. Nguyen.
5 That's affidavit of Thinh Dat Nguyen. I can give the Court
6 copies, if you please, but if you're not anticipating making a
7 decision right now, which I don't think you have to, they'll be
8 on the system.
9 THE COURT: We are on the record.
10 MR. BENNETT: So, it's not a complex case, Your
11 Honor. The Civil Practice and Remedies Code allows for a
12 Motion to Dismiss a case if the case is based on the exercise
13 of the right of free speech. Here Mr. Hoang's lawsuit is based
14 on Mr. Nguyen's and the magazine's exercise of their right to
15 free speech. That is criticizing Mr. Hoang who is a public
16 official and a public figure. I don't think that he disputes
17 he is both a public official and public figure. In order for
18 him to overcome the motion he has to make a prima facia showing
19 with clear and -- clear and specific evidence of each essential
20 element of his claim. He has failed to do so and, so, end of
21 the day the Court's going to have to grant the Motion to
22 Dismiss. The statute provides for mandatory attorney's fees.
23 I have filed an affidavit on my attorney's fees. They are
24 reasonable given the circumstances. And we're also asking for
25 sanctions. My Amended Motion to Dismiss has various
KAREN D. DESHETLER, CSR
281-723-9090
6
1 attachments in which -- they're public records in which Mr.
2 Hoang has filed other lawsuits to try to stop people from
3 exercising they're first amendment right. The Texas Citizens
4 Participation Act allows sanctions against a Plaintiff to
5 discourage him from trying to shut down people's free speech by
6 filing lawsuits. It's appropriate in this case. I don't know
7 how much is appropriate. Maybe a token amount would discourage
8 Mr. Hoang from doing this in the future. It might lead to be a
9 very large amount. He could probably answer that better than I
10 what it would take to stop him from filing lawsuits that
11 attempt to punish people for exercising their free speech
12 rights.
13 And with that, since we're in a hearing I guess
14 we rest. We've filed the evidence. I want to make sure that
15 the evidence is closed out before we leave here today so that
16 we don't get into a situation where Mr. Hoang decides, oh, I
17 can file this affidavit, I can file that affidavit. He is pro
18 se. He is a licensed lawyer, but he as pro se and with all
19 respect to him I want to make sure that we're clear that this
20 is the evidence that we're going to be dealing with, so that if
21 I filed a brief he doesn't come back and say, oh, I'm going say
22 this is what.
23 MR. HOANG: Can I respond to his, Your Honor?
24 THE COURT: Yes.
25 MR. HOANG: First of all he says that I filed
KAREN D. DESHETLER, CSR
281-723-9090
7
1 all the lawsuits just to discourage other people. Your Honor,
2 those lawsuits, we went through mediations. The Defendants
3 wrote letter of apologies and in accordance to the mediation
4 procedures once an apology like that and just to promote
5 harmony I dismissed that. It cannot be a base just for this
6 lawsuit, Your Honor. The second thing is, Your Honor, the anti
7 -- statute, Chapter 27 of TCPR, Your Honor, doesn't allow the
8 Defendant just to fabricate facts to liable somebody. In this
9 case, Your Honor, I have filed my motions and supplemental
10 answer. Clearly, the Defendant fabricated fact. Even today
11 before coming to Court he called and he said that I was sued
12 for calling a communist a communist. So, he affirms that I'm a
13 communist. In reality I've been fighting against the
14 communists over 30 years. I was imprisoned by the Vietnamese
15 communist government in solitary confinement.
16 MR. BENNETT: I'm sorry, I have to object. The
17 statute provides for evidence to be the pleadings and the
18 affidavit and not for live testimony on the issues. Mr. Hoang
19 has said this in his pleadings that he was imprisoned for
20 fighting the communist. I don't dispute that he has said that
21 and I know that he wants to make a persuasive case, but the
22 statute requires it to be done in writing.
23 MR. HOANG: Yes, Your Honor. In my original
24 petition I have laid out the elements very clearly that he
25 called me a communist. He affirms that I'm a spy, an insider
KAREN D. DESHETLER, CSR
281-723-9090
8
1 of the communist regime working for the interests of the
2 Vietnamese communist government. Your Honor, that's liable.
3 How could he identify me as an insider for the Vietnamese
4 communist. And in an anticommunist community like in Houston,
5 Your Honor, that would be a threat to my life. In reality,
6 Your Honor, the second phrase, the second statement he made is
7 this: Mr. Hoang, this is what it is, in his article, article
8 here, Your Honor, and I have the certified translation already.
9 Hoang was planning to put a death threat bomb putting him and
10 his family members of his house and then call the police to
11 blame on the Vietnamese Nationalist Activist. Afterward, he
12 took the pictures to take credit with the Vietnamese
13 communists. Your Honor, this is not an opinion. This is
14 statement of fact libeling me I was the victim of a death
15 threat bomb right in front of my house. Now, he turn around
16 and said that I put it just to try to get the credits with the
17 communists. And that on prima facia case is already there,
18 Your Honor. And then the first statement it says my father
19 died because of an old accident. An undocumented immigrant was
20 here. She negligently passed a red light and hit my father who
21 then went to Ben Taub Hospital and he passed in Ben Taub
22 Hospital in the year 2007. I, at that time, was not elected
23 the President of the Vietnamese community, yet. But thousands
24 of people already knew the facts. They went to the funeral.
25 Then after that I got elected as the President of the
KAREN D. DESHETLER, CSR
281-723-9090
9
1 Vietnamese community, Your Honor.
2 MR. BENNETT: Again, Your Honor, for the record
3 and I stopped talking, but I have to object that the evidence
4 in this case is the pleadings and the affidavits.
5 MR. HOANG: These are in the pleadings. It's
6 already in the pleadings.
7 MR. BENNETT: Some of this is in the pleadings,
8 but I'm saying he wants to put more into the record -- not
9 really what the statute allows.
10 MR. HOANG: Mr. Mark Bennett, I let you have
11 your chance. This is in the pleadings. I just repeat the
12 pleadings that is there. He then turn around and said my
13 father commit suicide, because my father found out I was
14 following the communists. It's not true, Your Honor. Those
15 are the facts that he made me affirm, Your Honor. It's not
16 opinion. It's not opinion, Your Honor. Maybe this is opinion.
17 He has that right. I understand that he has the First
18 Amendment right, but making up facts like that, Your Honor,
19 damage not only my reputation, but also putting my life and my
20 family members in jeopardy.
21 And in reality he objected, but I have -- later
22 on I have proof that I have asked him numerous times please
23 have a debate, you know. Because we have ways to fight against
24 the communists. If you can show me a better way I will kneel
25 down and carry your shoes. From that day on I will be your
KAREN D. DESHETLER, CSR
281-723-9090
10
1 servant the rest of my life. I don't want to pick on those
2 people. The statute here, Your Honor, you have to read the
3 statute, the legislative intent is to protect the little ones.
4 To protect those -- to protect those who write comments to the
5 editor-in-chief. But in this case, I don't know, he's the
6 editor-in-chief. Is he protected under statute? That's the
7 first question.
8 Now, if the statutes are going to be applied to
9 him the second issue is, Your Honor, does the statute is going
10 to protect him from fabricating facts, Your Honor. And I don't
11 think the statute does. I have provided numerous cases from
12 Texas Supreme Court. Defamation by itself, Your Honor, is the
13 fabrication of fact like that. He's not going to be protected.
14 MR. BENNETT: You rest?
15 MR. HOANG: Yes.
16 THE COURT: Okay.
17 MR. BENNETT: I think the Defendant has rested.
18 I would like to respond to two things. One is that Mr. Hoang
19 filed Phoungh Dingh Nguyen's affidavit, which purports to be a
20 translation of this article that he complains about from the
21 paper. And I would note, I don't like the allegation that
22 somebody's father committed suicide because of what the son had
23 done. If that were asserted as true I wouldn't like it. I
24 don't think that that's very nice. I would note, however, that
25 in the translation it said he succeeded to an extent that the
KAREN D. DESHETLER, CSR
281-723-9090
11
1 Tong Nguyen on-line raised the question that his father was so
2 shameful of the betrayal son, whereby he committed suicide. To
3 that extent it's reporting what some on-line source said.
4 What Mr. Hoang is missing here at the end of the
5 day is malice, actual malice. Actual malice means that Mr.
6 Nguyen and the magazine knew that they were publishing falsity
7 or were reckless about whether they were publishing falsity.
8 And all of the evidence that he has raised, none of it makes
9 the prima facia case there was actual malice. I have briefed
10 it for you. I can provide the brief. I haven't filed it, yet.
11 I can give you a courtesy copy now. I'll file it when I get
12 back to my office. I'll give Mr. Hoang a copy and I have the
13 cases in support of it, as well, if otherwise we're done with
14 this hearing.
15 MR. HOANG: Your Honor, I will respond to that
16 actual malice. He raised the first statement of fact that Mr.
17 Nguyen stated that posted on-line that my father committed
18 suicide. They say that. I object to it, Your Honor. Now,
19 even if that is the case those are two of the statements, Your
20 Honor. He called me an insider working for the communist
21 regime. And, also, the second thing is he said that I planted
22 a bomb in front of my house. Those, Your Honor, is not a
23 suspicion or is not an opinion. It's a statement of fact.
24 Those facts, I have requested to have a debate with him. But,
25 Your Honor, it's very clear that he didn't check it. Actual
KAREN D. DESHETLER, CSR
281-723-9090
12
1 malice is there, Your Honor. Not one day. He doesn't publish
2 one magazine only. He publishes it many issues. Issue in and
3 issue out. So, that is something that is so constant, Your
4 Honor. And that's actual malice, Your Honor. He can publish
5 it. I told him that. He can contact me, call me, ask me. I
6 can give him answer. I even provided him all the messages. He
7 didn't even care to bring it back. He has his affidavit. I
8 have my own allegation. But I provided him opportunity to
9 contact me. I have tons of witnesses on this. I have provided
10 him chance to say, this is not right. You can contact me. I
11 will provide you my version. Your Honor, for four years he has
12 only printed his version. Not one from me. And I have
13 objection to that many times. Actual malice is already there.
14 MR. BENNETT: Since it's my motion I suppose I
15 can have the last word?
16 THE COURT: Sure.
17 MR. BENNETT: I think Mr. Hoang misunderstands
18 actual malice. A failure to investigate is not actual malice.
19 He has to show that Mr. Nguyen actually knew it wasn't true or
20 acted in reckless disregard. And he talks about opinion versus
21 fact. The nature of actual malice law, first amendment law is
22 that a newspaper has the right to be wrong without being sued.
23 A newspaper can get the facts wrong without being liable for it
24 as long as the newspaper is not acting with this actual malice,
25 which is very high standard which, Mr. Hoang's evidence for
KAREN D. DESHETLER, CSR
281-723-9090
13
1 purposes of this hearing does not meet.
2 And I thank you for your time, Your Honor. If
3 you would like a courtesy copy of my brief now I can give it to
4 you or I will file it and you will have it electronically. I
5 also have copies of the cases. I can provide those to you now
6 or when I file the brief I can provide copies attached
7 electronically.
8 THE COURT: Just do it all electronically.
9 MR. HOANG: May I respond to that? To the
10 brief? I haven't received his brief.
11 THE COURT: You have or have not?
12 MR. HOANG: I have not.
13 MR. BENNETT: He has now.
14 MR. HOANG: Okay. Thank you. First thing and
15 then the second thing is if the magazine makes a false
16 statement of fact or because of negligence they print it wrong
17 they have to apologize. And this is the case, I put it in my
18 pleadings very clearly from the beginning we have dinner at his
19 house. And I said, "They are inviting me to go to Vietnam with
20 them." He said immediately, "If you go to Vietnam I'm going to
21 pull you down. I'm going to meet you and pull you down."
22 Actual malice is there, Your Honor.
23 MR. BENNETT: My plan to get the last word
24 didn't work, Your Honor. I thank you for your time and I'll
25 provide you with the brief. I think you will be able to decide
KAREN D. DESHETLER, CSR
281-723-9090
14
1 based on the papers.
2 THE COURT: All right.
3 MR. BENNETT: Thank you very much.
4
5
6 (Hearing concluded.)
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KAREN D. DESHETLER, CSR
281-723-9090
15
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3 I, Karen D. deShetler, Deputy Court Reporter, in and
4 for the 215th District Court of Harris County, State of Texas,
5 do hereby certify that the above and foregoing contains a true
6 and correct transcription of all portions of evidence and other
7 proceedings requested in writing by counsel for the parties to
8 be included in this volume of the Reporter's Record, in the
9 above-styled and numbered cause, all of which occurred in open
10 court or in chambers and were reported by me.
11 I further certify that this Reporter's Record of the
12 proceedings truly and correctly reflects the exhibits, if any,
13 admitted by the respective parties.
14 I further certify that the total cost for the
15 preparation of the Reporter's Record is $100 and will be paid
16 by the Plaintiff.
17 WITNESS MY OFFICIAL HAND this the 25th day of
18 August, 2015.
19
20 //Karen D. deShetler//
__________________________________________
21
Karen D. deShetler, CSR 1688
22 Expiration Date: 12/31/2016
Certified Court Reporter
23 74 Lyric Arbor Circle
The Woodlands, Texas 77381
24 Telephone: 281-723-9090
25
KAREN D. DESHETLER, CSR
281-723-9090