Flores-Demarchi v. Smith
| Decision Date | 30 June 2022 |
| Docket Number | 13-21-00303-CV,13-21-00304-CV |
| Parties | DANTE FLORES-DEMARCHI, Appellant, v. MELISSA SMITH AND JOSE GARCIA, Appellees. JOHN DOE, Appellant, v. MELISSA SMITH AND JOSE GARCIA, Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 206th District Court of Hidalgo County Texas.
Before Chief Justice Contreras and Justices Benavides and Marion [1]
Appellees Melissa Smith and Jose "Pepe" Garcia, current or former members of the Sharyland Independent School District (Sharyland ISD) board of trustees, filed a defamation suit against appellants Dante Flores-Demarchi and John Doe. Flores-Demarchi and Doe separately moved to dismiss the suit under the Texas Citizens Participation Act (TCPA). Appellees subsequently withdrew their claims against Doe, and both appellants' TCPA motions were denied by operation of law.
In appellate cause number 13-21-00303-CV, Flores-Demarchi argues: (1) appellees did not prove each element of their claims by clear and specific evidence; (2) appellees did not provide evidence negating his affirmative defenses; and (3) federal law preempts state tort liability in this case. In appellate cause number 13-21-00304-CV, Doe argues by one issue that the trial court erred by: (1) failing to grant his TCPA motion; (2) failing to award him attorney's fees and (3) failing to rule on his request for sanctions.
Because appellees failed to produce clear and specific evidence of actual malice, we conclude the TCPA motions to dismiss should have been granted. We reverse and remand.
In their original petition filed on April 12, 2021, appellees alleged that Flores-Demarchi and Doe[2] published false and defamatory statements about them on Facebook. Appellees sought damages and injunctive relief. Flores-Demarchi answered the suit and raised various affirmative defenses, including immunity under § 230 of the federal Communications Decency Act. See 47 U.S.C.A. § 230.
Flores-Demarchi filed a "Motion to Dismiss Pursuant to the [TCPA]" on May 6, 2021, arguing that appellees cannot prove the essential elements of their claim and "cannot overcome" his affirmative defenses. The motion requested dismissal as well as attorney's fees and sanctions under the TCPA. At 5:04 p.m. on June 14, 2021, Doe filed a "Motion to Dismiss Pursuant to the [TCPA]" making largely the same arguments as Flores-Demarchi's motion to dismiss. Like Flores-Demarchi, Doe requested dismissal of appellees' suit as well as attorney's fees and sanctions under the TCPA. At 5:14 p.m. that same day, appellees filed an amended petition naming only Flores-Demarchi as a defendant, but otherwise retaining the same factual allegations as in their original petition.
On June 18, 2021, appellees filed a second amended petition listing twenty-three Facebook posts which they alleged were made by Flores-Demarchi between January 17, 2020, and May 1, 2021, several of which include material re-posted from a separate Facebook account called "Red's Voice," which was operated by Doe. Nineteen of the posts (Posts 1 through 18 and Post 23) appeared on Flores-Demarchi's personal Facebook account, while four (Posts 19 through 22) appeared on a Facebook account entitled "Voters Against Sexual Assault."[3]
Doe filed a supplement to his motion to dismiss arguing that, though appellees abandoned their claims against him, his request for fees and sanctions under the TCPA remained pending. Flores-Demarchi filed an amended motion to dismiss individually addressing each of the statements enumerated in appellees' second amended petition. Appellees filed a joint response to both motions to dismiss, including affidavits in which appellees denied each of the accusations which were made or alluded to in the listed Facebook posts. Flores-Demarchi and Doe each filed a reply to appellees' response.[4]
The trial court heard arguments on the motions to dismiss on July 8 and August 19, 2021, but did not rule on the motions. Accordingly, the motions were denied by operation of law thirty days after the hearing. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(a), 27.008(a). These accelerated appeals followed. See id. § 51.014(a)(12).
The TCPA "protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). A party seeking dismissal under the TCPA has the initial burden to show that "the legal action is based on or is in response to . . . the party's exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1). If the movant meets its initial burden, then the plaintiff must establish by "clear and specific evidence a prima facie case for each essential element of the claim in question" to avoid dismissal. Id. § 27.005(c). Even if the plaintiff makes this showing, the trial court must nevertheless dismiss the action "if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law." Id. § 27.005(d).
Our review of a ruling on a TCPA motion to dismiss is de novo. Entravision Commc'ns Corp. v. Salinas, 487 S.W.3d 276, 281 (Tex. App.-Corpus Christi-Edinburg 2016, pet. denied); Hicks v. Grp. & Pension Adm'rs, Inc., 473 S.W.3d 518, 526 (Tex. App.-Corpus Christi-Edinburg 2015, no pet.).
A statement is defamatory if "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." Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (); see Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623-24 (Tex. 2018). The elements of a defamation cause of action are "(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases." In re Lipsky, 460 S.W.3d at 593.
A statement does not give rise to liability if it is either "not verifiable as false" or if "the 'entire context in which it was made' discloses that it is merely an opinion masquerading as a fact." Tatum, 554 S.W.3d at 624 (quoting Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002)); see In re Lubbock, 624 S.W.3d 506, 515 (Tex. 2021) (orig. proceeding) ("[T]rue statements cannot form the basis of a defamation complaint."). The "requisite degree of fault" depends on whether the person allegedly defamed is a private individual or a public figure. In re Lipsky, 460 S.W.3d at 593. Where the plaintiff is a public figure-as is the case with both appellees here-it must be shown that the defendant's statements were made with "actual malice." Id. "'Actual malice' in this context means that the statement was made with knowledge of its falsity or with reckless disregard for its truth." Id.
Texas common law distinguishes defamation claims as either per se or per quod. Id. at 596. Examples of defamation per se include "[a]ccusing someone of a crime" and adversely remarking on an individual's "fitness to conduct his or her business." Id. Whether a statement is defamatory per se is generally a question of law. Id. "When defamation is per se, the communication is actionable in and of itself without proof of actual damages." Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020).[5]
A. Prima Facie Case
There is no dispute that appellees' claims are "based on" or "in response to" Flores-Demarchi's exercise of the right of free speech; thus, the burden was on appellees to produce "clear and specific evidence" to establish a "prima facie case for each essential element" of their claims. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Flores-Demarchi contends by his first issue that appellees failed to meet this burden. In particular, he disputes that appellees showed: (1) that the statements at issue had a defamatory meaning; (2) that the statements were actionable statements of fact as opposed to unactionable opinions; (3) that Flores-Demarchi acted with actual malice; or (4) that appellees suffered damages.
A "prima facie case," as used in the TCPA, means "evidence that is legally sufficient to establish a claim as factually true if it is not countered." S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). It represents the "minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true." KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. 2013). In the context of the TCPA, "clear" has been interpreted to mean "unambiguous," "sure," or "free from doubt," while "specific" has been interpreted to mean "explicit" or "relating to a particular named thing." In re Lipsky, 460 S.W.3d at 590.
In deposition testimony attached to appellees' response to the motions to dismiss, Flores-Demarchi stated that he graduated from Sharyland High School in 2017. He acknowledged that he made all of the posts which appear on his personal Facebook account, but he stated that he does not know who operates the "Voters Against Sexual Assault" Facebook account, and he denied re-posting any material from that account.
With respect to Facebook Post 1,[6] Flores-Demarchi stated he re-posted a comment by Roma Lizcano alleging that Sharyland ISD "housed and covered up . . . crimes committed by a pervert"...
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