Dr. Hector Farias & Voices in Democratic Action v. Garza

• Court: Texas Court of Appeals
• Writing for the Court: Opinion by: SANDEE BRYAN MARION
• Citation: Farias v. Garza, 426 S.W.3d 808 (Tex. App. 2014)
• Decision Date: 29 January 2014
• Docket Number: No. 04–13–00094–CV.,04–13–00094–CV.
• Parties: Dr. Hector FARIAS and Voices in Democratic Action (VIDA), Appellants v. Eduardo A. GARZA and Uni–Trade Forwarding, Appellees.

426 S.W.3d 808

Dr. Hector FARIAS and Voices in Democratic Action (VIDA), Appellants

v.Eduardo A. GARZA and Uni–Trade Forwarding, Appellees.

No. 04–13–00094–CV.

Court of Appeals of Texas, San Antonio.

Jan. 29, 2014.

From the 49th Judicial District Court, Webb County, Texas, Trial Court No. 2012–CVT–001496–D1; Honorable Fred Shannon, Judge Presiding.¹

Baldemar Garcia, Jr., Person, Whitworth, Borchers & Morales, L.L.P., Laredo, TX, Jeffrey Jay Phillips, Andrew Ward, Houston, TX, Ricardo E. De Anda, De Anda Law Firm, P.C., Laredo, TX, for Appellant.

Adolfo Campero, Jr., Campero & Becerra, P.C., Laredo, TX, Ruth G. Malinas, Plunkett & Griesenbeck, Inc., San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

Appellees, Eduardo A. Garza and Uni–Trade Forwarding, L.C. (“Uni–Trade”) (collectively, “the plaintiffs”) filed a defamation action against appellants, Dr. Hector Farias and Voices in Democratic Action (“VIDA”) (collectively, “the defendants”).² The defendants each filed a motion to dismiss pursuant to the Texas Citizens' Participation Act (“the Act”). ³ The trial court denied the motions to dismiss, and this appeal by the defendants ensued.

BACKGROUND

VIDA is a political watchdog organization and Farias is its spokesperson. Garza is a Laredo businessman and customs broker who has worked in the international trade industry for twenty-five years. Garza owns or has an ownership interest in several U.S. companies, including (1) Uni–Trade, a freight forwarder; (2) Air–Trade Laredo, LLC (“Air–Trade”), an air cargo logistics, transportation, and customs clearing service; and (3) Garros Services, LLC (“Garros Services”), a produce supply chain management service.

In January and August of 2011, the City of Laredo solicited proposals to lease two tracts of unused land at the Laredo International Airport. The City Council later voted unanimously to execute the leases with Uni–Trade and Air–Trade, which were the only companies to submit lease proposals. On October 11, 2011, the City announced a request for proposals “for the management, or management and operation of two refrigerated inspection facilities located within the federal import lots at the World Trade Bridge and Columbia Solidarity Bridge.” Three companies submitted proposals: Garros Services, Portable Cold Solutions, and Laredo Facilitators, LLP. On November 28, 2011, the City Council voted (5 to 2) to accept the proposal submitted by Garros Services.

From November 4, 2011, when the bidding closed on the proposals for the refrigerated inspection facilities, through September 2012, Farias and VIDA were publicly critical of the facilities contract and Garza's alleged ties to Laredo political officials. These comments are the focus of Garza's defamation suit and this appeal.

APPLICATION OF THE ACT

The Texas Legislature enacted the Act ⁴ “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 (West Supp.2013). To achieve these ends, the Legislature provided that if a legal action is brought in response to a person's exercise of certain constitutional rights, that person may move to dismiss the action. Id. § 27.003(a). The movant bears the initial burden to show by a preponderance of the evidence that the action “is based on, relates to, or is in response to the [movant's] exercise” of certain rights, including the right of free speech. Id.§ 27.005(b). Garza concedes the allegations in his lawsuit bring his defamation cause of action within the scope of the Act. Therefore, the burden shifted to Garza as the defamation-plaintiff, and the trial court was required to dismiss his legal action unless he “establishe[d] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id.§ 27.005(c). This appeal addresses whether Garza satisfied this burden.

THRESHOLD ISSUES

A. Standard of Review

A trial court must dismiss the defamation action unless the party who brought the action “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem.Code § 27.005(c). The Legislature's use of the term “prima facie case” implies a minimal factual burden for the plaintiff: “[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.” Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01–12–00581–CV, 2013 WL 1867104, at *6 (Tex.App.-Houston [1st Dist.] May 2, 2013, no pet.). However, the Act requires that the proof offered address and support each element of every claim asserted with clear and specific evidence. SeeTex. Civ. Prac. & Rem.Code § 27.005(b), (c). In the context of a motion to dismiss pursuant to the Act, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem.Code § 27.006(a).

Garza advocates a standard of review similar to that used to review no-evidence summary judgments. The only court to directly address the standard of review issue was “hesitant” “to embrace the Rule 166a(i) analogy or import into Chapter 27 the ‘scintilla of evidence’ concept applicable in the context of a no-evidence motion for summary judgment.” See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). The Rehak court explained its hesitation as

stem[ing] from Chapter 27's distinct terminology. It is doubtful whether Rule 166a(i)'s no-evidence standard meshes with a Chapter 27 mechanism that demands a showing of “clear and specific” evidence—not just “some” evidence—to avoid dismissal. CompareTex. Civ. Prac. & Rem.Code § 27.005(c) (non-movant must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question”) (emphasis added) with Romo v. Tex. Dept. of Transp., 48 S.W.3d 265, 269 (Tex.App.-San Antonio 2001, no pet.) (“When a party moves for a no-evidence summary judgment, the nonmovant must produce some evidence raising a genuine issue of material fact.”). The purposeful inclusion of a “clear and specific evidence” requirement indicates that the non-movant must satisfy an elevated evidentiary standard under section 27.005(c). We will follow section 27.005(c)'s express (albeit undefined) terminology and leave the “scintilla” to other contexts.

Id.

The Act does not define “clear and specific” evidence; therefore, these terms are given their ordinary meaning. See TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). “Clear” means “free from obscurity or ambiguity,” “easily understood,” “free from doubt,” or “sure.” Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., No. 01–12–00990–CV, ––– S.W.3d ––––, ––––, 2013 WL 3716693, at *6 (Tex.App.-Houston [1st Dist.] July 16, 2013, no pet. h.) (quoting Merriam–Webster's Collegiate Dictionary 229 (11th ed. 2003)). “ ‘Specific’ means ‘constituting or falling into a specifiable category,’ ‘free from ambiguity,’ or ‘accurate.’ ” Id. (quoting Merriam–Webster's Collegiate Dictionary, at 1198). “Clear and specific evidence has also been described as evidence that is ‘unaided by presumptions, inferences, or intendments.’ ” Id. (quoting Rehak, 404 S.W.3d at 726).

“Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue.” Rehak, 404 S.W.3d at 726 (quoting Duncan v. Butterowe, Inc., 474 S.W.2d 619, 621 (Tex.Civ.App.-Houston [14th Dist.] 1971, no writ)). “In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party.” Id.; see also In re Lipsky, No. 02–12–00348–CV, 411 S.W.3d 530, 539–40 (Tex.App.-Fort Worth Apr. 22, 2013, orig. proceeding) (“In cases unrelated to motions to dismiss under chapter 27, Texas courts have defined ‘prima facie’ evidence as the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’ ”).

A determination of whether a party has presented prima facie proof of a meritorious claim is a question of law; therefore, we review the trial court's decision of this issue de novo. Rehak, 404 S.W.3d at 726. The de novo standard also governs our review of the trial court's determination regarding the propriety of dismissal under section 27.005. Id. “By the term ‘ de novo ’ we mean that the appellate court makes an independent determination and applies the same standard used by the trial court in the first instance.” Id.

We conclude the proper standard is to “determine de novo whether the record contains a minimum quantum of clear and specific evidence that, unaided by inferences, would establish each essential element of the claim in question if no contrary evidence is offered.” Id.;seeTex. Civ. Prac. & Rem.Code § 27.005(c); Duncan, 474 S.W.2d at 621;see also Crazy Hotel Assisted Living, 2013 WL 1867104, at *6 (examining pleadings and evidence to determine whether plaintiffs marshaled any “clear and specific” evidence to support each alleged element of their causes of action).

B. “Claim” v. “Factual Theory”

In its order denying the motions to dismiss, the trial court stated as follows:

After consideration of said motions [to dismiss], the omnibus response thereto, Plaintiff's first amended petition, and the pleadings, affidavits, and other evidence in the Court's file, the Court is of the opinion that while each statement made by a Defendant may not be actionable standing alone and...