Avila v. Larrea

• Court: Texas Court of Appeals
• Citation: Avila v. Larrea, 394 S.W.3d 646 (Tex. App. 2013)
• Decision Date: 05 March 2013
• Docket Number: No. 05–11–01637–CV.,05–11–01637–CV.
• Petition History: pet. denied
• Parties: Virgilio AVILA and Univision Television Group, Inc., Appellants v. F.B. LARREA, Appellee.

394 S.W.3d 646

Virgilio AVILA and Univision Television Group, Inc., Appellants

v.F.B. LARREA, Appellee.

No. 05–11–01637–CV.

Court of Appeals of Texas, Dallas.

Dec. 18, 2012.

Rehearing Overruled March 5, 2013.

Charles L. “Chip” Babcock, David T. Moran, Andrew D. Graham, Dallas, for Appellants.

Cynthia Hollingsworth, John M. Lozano, Dallas, for Appellee.

Before Justices BRIDGES, RICHTER, and LANG.

OPINION

Opinion by Justice LANG.

This accelerated interlocutory appeal arises from a defamation action by appellee F.B. Larrea against appellants Virgilio Avila and Univision Television Group, Inc. (“Univision”). Appellants moved to dismiss the action pursuant to the Texas Citizens Participation Act (“TCPA”), which provides for dismissal of actions involving the exercise of certain constitutional rights. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 27.001–27.011 (West Supp.2012). The trial court held a hearing on appellants' motion to dismiss and, in an order dated within thirty days after that hearing, stated in part (1) limited discovery should be allowed on certain issues, to be completed within ninety days of the date of the order, and (2) “a continuation of the current hearing shall be set within 30 days thereafter, or as soon thereafter as this Court's docket conditions will permit.” Subsequently, appellants filed this appeal pursuant to the TCPA's provision that states, in part, if a trial court does not “rule on” a motion to dismiss under the statute within thirty days after the hearing on the motion, “the motion is considered to have been denied by operation of law and the moving party may appeal.” Id.§ 27.008.

In two issues on appeal, appellants assert the trial court reversibly erred by (1) failing to grant appellants' motion to dismiss on the merits and (2) authorizing discovery on appellants' motion to dismiss and continuing the hearing on the motion after the thirty-day period prescribed by the TCPA. Additionally, Larrea challenges this Court's jurisdiction over this appeal. ¹

We conclude this Court has jurisdiction over this appeal. Further, we decide in favor of appellants on their first issue. Therefore, we need not address appellants' second issue. The trial court's order is reversed and we render judgment granting appellants' motion to dismiss pursuant to the TCPA and remand this case to the trial court for consideration of damages and costs pursuant to that act. See id. § 27.009(a).

I. FACTUAL AND PROCEDURAL BACKGROUND

Univision is a Spanish-language television station group that, through a subsidiary, owns and operates a local station, KUVN Channel 23 (“KUVN”), which broadcasts in the Dallas/Fort Worth area. Avila is a reporter for KUVN. Larrea, an attorney who practices law in Dallas, asserted in his petition that defamatory statements pertaining to him were made by appellants in two broadcasts that were televised by Univision on May 2, 2011, and May 3, 2011, respectively, and posted on Univision's Internet website (the “broadcasts”). According to Larrea, the broadcasts were “patently and substantially false” and appellants acted with malice because they “knew the defamatory statements were false or published the statements with reckless disregard of their truth or falsity.” Further, Larrea contended the broadcasts were “extremely injurious” to his reputation. Larrea sought to recover actual and “special” damages.

Appellants filed a general denial answer and a timely motion to dismiss pursuant to TCPA section 27.003. See id.§ 27.003. In their motion to dismiss, appellants asserted in part that Larrea's action “is based on, relates to and/or is in response to [appellants'] exercise of the right of free speech and/or the right to petition.” Further, appellants stated the broadcasts “related to a matter of public concern regarding, without limitation, (i) economic well-being; (ii) the government; (iii) community well-being; (iv) a public figure; and/or (v) a service in the marketplace.” Appellants requested that the trial court dismiss Larrea's action with prejudice and award appellants “all of their allowable damages and costs” pursuant to TCPA section 27.009. Attached to appellants' motion to dismiss were an affidavit of Avila, video recordings of the broadcasts subtitled in English, and transcripts of the broadcasts in both English and Spanish.

Larrea filed a response to appellants' motion to dismiss and his affidavit. In his response, Larrea asserted in part that by enacting the TCPA, Texas had followed the lead of other jurisdictions “in leveling the playing field in David versus Galiath [sic] scenarios involving the First Amendment.” According to Larrea, the enactment of the TCPA was “for the purpose of addressing and discouraging strategic lawsuits against public participation ” (emphasis original) and it was ironic that “a large corporation is using this Act in defending itself against an ordinary citizen.” Additionally, Larrea asserted his affidavit “establishes by clear and specific evidence a prima facie case for libel against the Defendants, as is required by [TCPA] Section 27.005(c).” ²

Subsequent to the filing of Larrea's response, appellants filed a brief in support of their motion to dismiss. In that brief, appellants asserted in part that they were entitled to dismissal pursuant to the TCPA because Larrea had not established by “clear and specific evidence” a prima facie case for every element of his cause of action, as required by the statute. Specifically, according to appellants, Larrea had presented no evidence “(1) that the alleged defamatory statements contain false statements of fact; (2) that [appellants] acted with ‘actual malice;’ or (3) explaining why Larrea is not a public figure.” Further, appellants contended,

As to the falsity of the allegations by Larrea's former clients: when, as here, a media defendant reports allegations of wrongdoing, the plaintiff is required to prove that the allegations were either (1) not made at all; or (2) not accurately reported in order to support a defamation claim. The accuracy of the underlying allegations under investigation is immaterial. Larrea, of course, cannot meet his burden to prove that the allegations in the Broadcasts were either not made, or mischaracterized, because the Broadcasts document his former clients making the complaints on camera.

(citations omitted).

The trial court held a hearing on appellants' motion to dismiss on October 18, 2011. In addition to asserting the arguments described above, counsel for Larrea requested for the first time at the hearing that the trial court allow discovery respecting appellants' motion to dismiss. Specifically, counsel for Larrea offered into evidence an email he stated was sent by him to the general manager of KUVN prior to the time the broadcasts were aired in which counsel for Larrea informed KUVN that Saucedo's allegation that Larrea never visited her husband in jail was “a lie.” Counsel for Larrea requested that the email be admitted into evidence “for the limited purpose of establishing good cause for allowing limited discovery in this case.” Counsel for appellants objected to the email being admitted into evidence “because the statute makes it quite clear that this is not to be an evidentiary hearing.” Additionally, counsel for appellants argued the TCPA “has a comprehensive scheme” and “the scheme is quite clear that it is to—designed to quickly dispose of these cases and not to have protracted discovery of the type that is contemplated.” The trial court admitted the email into evidence “on the issue of good cause for discovery” and otherwise sustained appellants' objection.

The trial court rendered an order dated November 16, 2011, allowing limited discovery and providing for a continuation of the hearing as described above. Specifically, the order allowed limited discovery “on the issues of (a) the falsity of the statements involved and (b) whether the defendants acted with actual malice.” Additionally, the order stated that it “determines no other issues under Chapter 27 by implication.”

This appeal timely followed.³See id.§ 27.008.

II. DISMISSAL PURSUANT TO TCPA

A. Standard of Review

We review issues of statutory construction de novo. See, e.g., Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010). In construing statutes, our primary objective is to give effect to the legislature's intent. Id. (citing Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009)). “The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011); Tex. Lottery Comm'n, 325 S.W.3d at 635.

B. Applicable Law

The purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem.Code Ann. § 27.002. The TCPA provides a means for a defendant, early in the lawsuit, to seek dismissal of certain claims identified in the act, including defamation. See id.§§ 27.003, 27.008. The act is to be “construed liberally to effectuate its purpose and intent fully.” Id.§ 27.011(b). “Exercise of the right of free speech” is defined by the act as “a communication made in connection with a matter of public concern.” Id.§ 27.001(3). “Matter of public concern” includes, inter alia, an issue related to “a good, product, or service in the marketplace.” Id.§ 27.001(7)(E).

“If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” Id.§ 27.003(a). Such motion must...