Mobile Video Tapes Inc., Channel 5 News and John Kittleman v. Mark Cantu and Law Office of Mark A. Cantu

NUMBER 13-16-00109-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EMMA PEREZ TREVIÑO,
CARLOS SANCHEZ,
THE McALLEN MONITOR,
MARCI CALTABIANO-PONCE,
VALLEY MORNING STAR, AND
AIM MEDIA TEXAS, LLC, Appellants,

v.

MARK CANTU, Appellee.

On appeal from the 92nd District Court
of Hidalgo County, Texas.
 NUMBER 13-16-00111-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MOBILE VIDEO TAPES INC.,
CHANNEL 5 NEWS AND
JOHN KITTLEMAN, Appellants,

v.

MARK CANTU AND
LAW OFFICE OF MARK CANTU, Appellees.

On appeal from the 92nd District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides

This consolidated interlocutory appeal concerns the denial of various media

defendants’ motions under the Texas Citizens Participation Act (“TCPA”) to dismiss

distinct, yet related, lawsuits filed against them by appellee Mark A. Cantu and the Law

Office of Mark A. Cantu (collectively “Cantu,” unless otherwise noted). See generally TEX.

CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West, Westlaw through 2015 R.S.). The

appellants in appellate cause number 13-16-00109-CV are: Emma Perez Treviño, Carlos

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Sanchez, The McAllen Monitor, Marci Caltabiano-Ponce, Valley Morning Star, and Aim

Media Texas, LLC (collectively “The Monitor Defendants,” unless otherwise noted). The

appellants in appellate cause number 13-16-00111-CV are: Mobile Video Tapes, Inc.,

Channel 5 News, and John Kittleman (collectively “the Channel 5 Defendants,” unless

otherwise noted).

We reverse and render in part and remand in part on both appeals.

I. BACKGROUND

A. The Monitor Lawsuit (Cause Number 13-16-00109-CV)

In May 2015, Cantu sued The Monitor Defendants seeking damages for

defamation, business disparagement, and intentional infliction of emotional distress

regarding two news articles featuring Cantu and written by newspaper reporter Emma

Perez Treviño.

1. The Castillo Case Article

The first article was entitled “Texas Supreme Court: Attorney, rogue juror in Limas’

court provoked settlement.” The article reported on a case in which Cantu represented a

family in an action against Ford Motor Company following a rollover crash (“the Castillo

case”). See generally Ford Motor Co. v. Castillo, 444 S.W.3d 616, 617–23 (Tex. 2014)

(per curiam) (op. on reh’g). The article reported on the Castillo case’s subsequent appeal

to the Texas Supreme Court and that court’s ultimate disposition of the case. The article

mentions that “the court found evidence that McAllen lawyer Mark A. Cantu had been in

collusion with a juror to maneuver the $3 million settlement from Ford, during a 2004 jury

trial in the 404th state District Court presided over by former Judge Abel C. Limas.” Limas

is currently serving a 72–month sentence in federal prison for taking bribes from attorneys

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in exchange for favorable rulings. See id. at 618 n.1. The article specifically mentions

that the rulings for which Limas was sentenced “do not include” his role in the Castillo

case as presiding judge. Additionally, the article quoted a public affairs administrator from

the State Bar of Texas’s Office of Chief Disciplinary Counsel who had no comment on

whether it was investigating Cantu in the Castillo case. Lastly, the article printed a

verbatim summary of the Castillo case as recited by the Texas Supreme Court in its

opinion and also outlined the procedural history of the case, including the initial trial and

its numerous appeals.

2. The Cantu Article

The second article is entitled “Attorney in Ford case has long history of disciplinary

concerns.” The article leads with a discussion of a 2011 bankruptcy proceeding involving

Cantu, his wife Roxanne, and their affiliated corporation Mar-Rox, Inc. See generally In

re Cantu, No. 08-70260, 2011 WL 672336, at *1 (Bankr. S.D. Tex. 2011). The article

directly quotes paragraphs from the bankruptcy judge’s opinion, including one in which

the bankruptcy judge requests that the State Bar of Texas investigate Cantu. Finally, the

article outlines Cantu’s disciplinary history with the State Bar dating back to the early

1990s.

B. The Channel 5 News Lawsuit (Cause Number 13-11-00111-CV)

On June 8, 2015, Cantu also filed suit against the Channel 5 Defendants seeking

damages for defamation, business disparagement, and intentional infliction of emotional

distress related to an unidentified news report that featured Cantu and his law office.

Cantu’s petition, however, alleges that the Channel 5 Defendants’ statements concerned

Cantu and Limas.

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C. Media Defendants’ Motions to Dismiss

Shortly after Cantu filed his lawsuits, The Monitor Defendants and the Channel 5

Defendants each filed a motion to dismiss Cantu’s lawsuits pursuant to the TCPA. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. The Monitor Defendants asserted in their

motion that Cantu’s complaints against them related to their reporting “on an issue of

public concern, namely the conduct of [Cantu] as an officer of the Texas courts.” The

Channel 5 Defendants asserted the same grounds in their motion to dismiss Cantu’s

lawsuit under the TCPA, namely that its reporting involved “an issue of public concern,

namely the conduct of [Cantu] as an officer of the Texas courts.” In support of their

respective motions, The Monitor Defendants attached an affidavit by newspaper editor

Carlos Sanchez, and the Channel 5 Defendants attached an affidavit by Channel 5 News’

general manager, John Kittleman.

After rescheduling hearings on both motions, the trial court ultimately held hearings

on each motion to dismiss on January 13, 2016, but no testimony was taken. Cantu did,

however, file responses to each motion to dismiss. In response to The Monitor

Defendants, Cantu filed an affidavit essentially repeating the allegations set forth in his

petition against The Monitor Defendants. In response to the Channel 5 Defendants,

Cantu filed a more detailed response, which attacked Kittleman’s affidavit on evidentiary

grounds. Cantu also attached an affidavit to his response, explaining why and how the

Channel 5 Defendants defamed him, and also stated that “given the opportunity” he would

submit “a clear [and] specific affidavit of one of my former clients and the negative reaction

and thoughts regarding me and my office upon hearing the news report.”

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 The trial court did not rule on either motion to dismiss after the hearing, thus, the

motions were denied by operation of law, and these interlocutory appeals followed. See

id. § 27.008(a).

II. MOTIONS TO DISMISS UNDER THE TCPA

By four issues, which we treat as one, The Monitor Defendants assert that the trial

court erred by denying their motion to dismiss by operation of law. By two issues, which

we likewise treat as one, the Channel 5 Defendants assert that the trial court erred in

denying their motion to dismiss by operation of law.

A. Applicable Law and Standard of Review

The TCPA provides for the expedited dismissal of a legal action that implicates a

defendant's right of free speech or other First Amendment right when the party filing the

action cannot establish the TCPA’s threshold requirement of a prima facie case. Sullivan

v. Abraham, 488 S.W.3d 294, 295 (Tex. 2016).

A two-step process is initiated by motion of a defendant who believes that the

lawsuit responds to the defendant's valid exercise of First Amendment rights. Under the

first step, the burden is initially on the defendant-movant to show “by a preponderance of

the evidence” that the plaintiff's claim “is based on, relates to, or is in response to the

[movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right

of association.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding) (citing

TEX. CIV. PRAC. & REM. CODE § 27.005(b)). Relevant here, the “exercise of the right of

free speech” is statutorily defined as a communication made in connection with a matter

of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A matter of public

concern includes an issue related to: (1) health or safety; (2) environmental, economic,

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or community, well-being; (3) the government; (4) a public official or public figure; or (5)

a good product, or service in the marketplace. Id. § 27.001(7). The TCPA does not

require a movant to present testimony or other evidence to satisfy the movant’s

evidentiary burden. Hicks v. Group & Pension Admins., Inc., 473 S.W.3d 518, 526 (Tex.

App.—Corpus Christi 2015, no pet.).

If the movant is able to demonstrate that the plaintiff's claim implicates one of these

rights, the second step shifts the burden to the plaintiff to establish by clear and specific

evidence a prima facie case for each essential element of the claim in question. In re

Lipsky, 460 S.W.3d at 587 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)). In

determining whether the plaintiff's claim should be dismissed, the court is to consider the

pleadings and any supporting and opposing affidavits. Id. Within defined time limits, the

court must then rule on the motion and must dismiss the plaintiff's claim if the defendant's

constitutional rights are implicated and the plaintiff has not met the required showing of a

prima facie case. Id. The phrase “clear and specific evidence” has been defined as more

than mere notice pleading, but not more than the burden of proof required for the plaintiff

to prove at trial. See id. at 590–91. Instead, a plaintiff must provide enough detail to

show the factual basis for its claim. Id. In a defamation case that implicates the TCPA,

pleadings and evidence that establishes facts of when, where, and what was said, the

defamatory nature of the statements, and how they damaged the plaintiff should be

sufficient to resist a TCPA motion to dismiss. Id. at 591.

In reviewing this two-step process under the TCPA, we first examine whether a

defendant moving to dismiss under the TCPA has met his burden by a preponderance of

evidence as a legal question that we review de novo. See Newspaper Holdings, Inc. v.

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Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.]

2013, pet. denied). If a defendant meets his burden, we then examine the pleadings and

evidence in a light favorable to the plaintiff to determine whether the plaintiff has

marshaled “clear and specific” evidence to support each alleged element of their causes

of action. Id. at 80–81.

B. The Monitor Lawsuit

In their motion to dismiss and accompanying affidavit from Sanchez, The Monitor

Defendants assert that the news stories at issue involve “an issue of public concern,

namely the conduct of [Cantu] as an officer of the Texas courts.” We conclude that both

articles at issue in this case are matters of public concern because they concern the

practice of law, public corruption, cases filed in our judicial system, and disciplinary

proceedings brought in Texas against a lawyer licensed by the Supreme Court of Texas.

All of these issues are undoubtedly matters of public concern. Cf. Avila v. Larrea, 394

S.W.3d 646, 655 (Tex. App.—Dallas 2012, no pet.) (holding that reporting on legal

services involved a matter of public concern). Accordingly, we hold that The Monitor

Defendants met their initial burden under the TCPA to establish that they were exercising

their right to free speech. See In re Lipsky, 460 S.W.3d at 586.

Next, we examine Cantu’s causes of action for defamation, business

disparagement, and intentional infliction of emotional distress.

To maintain a defamation cause of action, the plaintiff must prove that the

defendant: (1) published a 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,

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or negligence, if the plaintiff was a private individual, regarding the truth of the statement.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

Business disparagement and defamation are similar in that both involve harm from

the publication of false information. In re Lipsky, 460 S.W.3d at 591. To prevail on a

business disparagement claim, a plaintiff must establish that (1) the defendant published

false and disparaging information about it, (2) with malice, (3) without privilege, (4) that

resulted in special damages to the plaintiff. Forbes Inc. v. Granada Biosciences, Inc.,

124 S.W.3d 167, 170 (Tex. 2003).

Lastly, the elements of intentional infliction of emotional distress are: (1) the

defendant acted intentionally or reckless, (2) the conduct was extreme and outrageous;

(3) the actions of the defendant caused the plaintiff emotional distress; and (4) the

emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d

619, 621–22 (Tex. 1993).

At the motion to dismiss hearing, Cantu did not bring forth any evidence or provide

any testimony to defend against the motion to dismiss. Instead, Cantu solely made

arguments to the trial court. Furthermore, Cantu filed an affidavit after the motion to

dismiss hearing was held that essentially repeats his allegations in his petition and

contains conclusory statements. However, even if we were to consider this affidavit, it

does not help Cantu satisfy his burden under the TCPA. Cantu failed to provide the trial

court with clear and specific evidence to show the factual basis for his claims against The

Monitor Defendants. See In re Lipsky, 460 S.W.3d at 591. Accordingly, the trial court

erred by not granting The Monitor Defendants’ motion to dismiss. We sustain The Monitor

Defendants’ issue on appeal.

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C. The Channel 5 News Lawsuit

Like The Monitor Defendants, the Channel 5 Defendants filed a motion to dismiss

Cantu’s lawsuit against them under the TCPA because the reports that Cantu based his

lawsuit on were constitutionally protected because they reported on a matter of public

concern. As explained above, news reporting on the practice of law, public corruption,

cases filed in our judicial system, and disciplinary proceedings brought in Texas against

a lawyer licensed by the Supreme Court of Texas involve matters of public concern.

Accordingly, we hold that the Channel 5 Defendants met their initial burden under the

TCPA. See id. at 586.

Cantu sued the Channel 5 Defendants for the same causes of action as The

Monitor Defendants: defamation, business disparagement, and intentional infliction of

emotional distress, and we will not repeat the elements for each cause of action again.

Unlike in the other case, however, Cantu filed a more robust response to the Channel 5

Defendants’ motion to dismiss, as well as an affidavit. In his affidavit, Cantu asserted in

conclusory fashion that the Channel 5 Defendants’ news report “injured [his] reputation

and exposed [him] to public hatred, contempt, ridicule, and financial injury.” Cantu fails

to explain more or offer any other proof of how these reports injured him. Further, Cantu

asserted that:

[G]iven the opportunity, I would submit a clear [and] specific affidavit
of one of my former clients and the negative reaction and thought regarding
me and my office upon hearing the news report. I would also submit a clear
and specific affidavit of a member of the community and potential client who
upon hearing the news report and looking on line and seeing the written
publication as well decided not to hire to represent her and her daughter
whom had been seriously injured in a vehicular collision and were in need
of the services of an attorney. I would also offer the affidavit of an
Accountant regarding some general principles of accounting and basically

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 confirming that loss of business results in loss of that and possibly other
income.

Those affidavits would be submitted as a sample of the injury that
the publications caused me.

Despite these representations regarding how he would bring forth clear and

specific evidence to establish his prima facie case against the Channel 5 Defendants,

Cantu never followed through. Therefore, the trial court was left only with Cantu’s

pleadings and his affidavit. We hold that this is not enough clear and specific evidence

under the TCPA to overcome his burden and establish a prima facie case. See In re

Lipsky, 460 S.W.3d at 591. Accordingly, the trial court erred by not granting the Channel

5 Defendants’ motion to dismiss. We sustain the Channel Five Defendants’ issue on

appeal.

D. Summary

In summary, Cantu failed to meet his burden to overcome dismissal under the

TCPA because he failed to put forth clear and specific evidence to establish his prima

facie case for his causes of action against The Monitor Defendants and the Channel 5

Defendants. Accordingly, the trial court erred in failing to grant the motions to dismiss.

We sustain both The Monitor Defendants’ as well as the Channel 5 Defendants’ issues

on appeal.

III. CONCLUSION

We reverse the trial court’s denial of The Monitor Defendants’ motion to dismiss in

cause number 13-16-00109-CV and render an order granting the motion to dismiss. We

also reverse the trial court’s denial of the Channel 5 Defendants’ motion to dismiss in

cause number 13-11-00111-CV and render an order granting the motion to dismiss.

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Finally, we remand both cases for further proceedings consistent with this opinion. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009.

GINA M. BENAVIDES,
Justice

Delivered and filed the
2nd day of February, 2017.

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