Khou-Tv, Inc. v. Status Lounge Inc.
| Decision Date | 10 June 2021 |
| Docket Number | NO. 14-19-00393-CV,14-19-00393-CV |
| Citation | 639 S.W.3d 752 |
| Parties | KHOU-TV, INC. and William Langlois; Hearst Newspapers ("Hearst"), LLC d/b/a Houston Chronicle, Appellants v. STATUS LOUNGE INCORPORATED, Appellee |
| Court | Texas Court of Appeals |
Catherine Lewis Robb, Laura Lee Prather, Austin, TX, Jonathan Donnellan, New York, NY, for Appellants.
Curt Hesse, Melissa Moore, Bridget Davidson, Houston, TX, for Appellee.
Panel consists of Justices Wise, Zimmerer, and Wilson.
Ken Wise, Justice In this interlocutory appeal, several media defendants challenge the trial court's denial of their motions to dismiss the plaintiff's claims under the Texas Citizens Participation Act (TCPA).1 We hold that the plaintiff failed to establish a prima facie case for its claims of libel and business disparagement because the plaintiff failed to provide evidence that the defendants’ statements were not substantially true. Accordingly, the trial court erred by denying the defendants’ motions to dismiss. We reverse the trial court's order and remand for further proceedings.
This case is the second appeal of the trial court's denial of the defendants’ motions to dismiss under the TCPA. See Hearst Newspapers, LLC v. Status Lounge Inc. , 541 S.W.3d 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The facts are recited in greater detail in that opinion. See id. at 883–87. In short, this case involves two articles published by different media defendants based on public reports from the Houston Police Department following a shooting that occurred near Status Lounge's bar. KHOU-TV, Inc. and its journalist William Langlois published one article, and Hearst Newspapers, LLC d/b/a Houston Chronicle published the other.
In most respects, the articles are substantially similar to the police report. See id. at 884. However, in its response to the media defendants’ motions to dismiss, Status Lounge argued that the articles differed meaningfully from what the police reported. In particular, the police reported that a bandmember got in an argument with the "owner" of the bar about how long the band was supposed to play, and then the "manager" of the bar shot the bandmember and fled the location. Id. The articles, however, stated that the "owner" shot the bandmember. And the KHOU article stated that the owner was taken into custody, a fact not asserted by the police. Status Lounge argued that that these two discrepancies were "distinctions with a difference." Status Lounge attached a declaration from the bar's manager, stating that no owner of Status Lounge was taken into custody. Status Lounge also argued in its response and in a separate motion that the TCPA was unconstitutional.
The trial court denied the motions to dismiss as untimely and ruled that the TCPA was constitutional in separate orders. In the prior appeal, this court reversed the trial court's order denying the motions as untimely, remanding the case to the trial court to rule on the merits of the parties’ arguments. Id. at 894. This court held that it lacked jurisdiction over the trial court's ruling that the TCPA was constitutional. See id. This court's mandate issued in April 2018. About a year later, the trial court signed a written order stating, among other things:
Within twenty days of the trial court's signing this order, the defendants filed notices of appeal.
In several issues, the defendants contend that the trial court erred by denying the TCPA motions because, among other reasons, Status Lounge failed to make a prima facie showing that the articles were not substantially true when compared to the police report. Status Lounge responds that this court lacks jurisdiction over the defendants’ appeal because the motions were denied by operation of law long before the trial court signed a written order and the defendants filed notices of appeal. Status Lounge also contends that the trial court's ruling should be upheld because the TCPA is unconstitutional. Finally, Status Lounge contends that the merits of the TCPA motions should be decided on the original papers and denied.
We address jurisdiction first, holding that the motions were not denied until the trial court signed its written order, so the defendants’ notices of appeal were timely, and this court has jurisdiction. Then, we hold that Status Lounge failed to meet its burden under the TCPA to show by a preponderance of the evidence that the articles were not substantially true. Finally, Status Lounge has not shown that this court's prior holding regarding appellate jurisdiction to review the constitutional challenge was clearly erroneous, so we do not reconsider it.
A trial court must hold a hearing on a TCPA motion to dismiss no later than 120 days after service of the motion. See Tex. Civ. Prac. & Rem. Code § 27.004(a), (c). If a trial court does not rule on a TCPA motion to dismiss within thirty days of the conclusion of a hearing on the motion, the motion is denied by operation of law, and the moving party may appeal. See id. §§ 27.005(a), 27.008(a), 51.014(a)(12). The moving party must file a notice of appeal within twenty days of the denial, or else this court lacks jurisdiction over the appeal. See Komerica Post, LLC v. Jai Sung Byun , No. 14-19-00764-CV, 2021 WL 1804512, at *3 () (mem. op.) ; Fell Clutch, LLC v. Cherokee Black Entm't Inc. , No. 14-19-00577-CV, 2020 WL 372978, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2020, no pet.) (mem. op.).
Here, the trial court signed a written order denying the TCPA motions on the merits about a year after this court issued its mandate in the first appeal. Status Lounge contends that the motions, however, were denied by operation of law on May 13, 2018, thirty days after the issuance of this court's mandate, and this court lacks jurisdiction because the defendants did not file a notice of appeal within twenty days of the implied overrulings.
This court remanded the case so the trial court could "rule on the merits of the parties’ arguments." Hearst Newspapers, LLC , 541 S.W.3d at 894. This court's opinion and mandate did not include a deadline for the trial court to hold a new hearing on the TCPA motions or issue rulings. Nor does the statute impose a deadline for holding a hearing on a motion to dismiss after a reversal and remand by a court of appeals. And, the trial court did not hold a new hearing on the motion. Accordingly, the motion could not have been denied by operation of law thirty days after this court's mandate issued. See Braun v. Gordon , No. 05-17-00176-CV, 2017 WL 4250235, at *2 (Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem. op.) ( ; accord RPM Servs. v. Santana , No. 06-19-00035-CV, 2019 WL 4064576, at *2 (Tex. App.—Texarkana Aug. 29, 2019, pet. denied) (mem. op.) ; Wightman-Cervantes v. Hernandez , No. 02-17-00155-CV, 2018 WL 798163, at *3 (Tex. App.—Fort Worth Feb. 9, 2018, pet. denied) (mem. op.).2
The defendants filed their notices of appeal within twenty days after the trial court signed a written order denying the TCPA motions, thus invoking this court's jurisdiction.
To be entitled to dismissal under the TCPA, a defendant has the initial burden to show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to" the defendant's exercise of the right to petition, association, or free speech. See In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) ; see also Act of May 18, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961 ).3 If the defendant satisfies this initial burden, the burden shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. See ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017). Whether the parties have met their respective burdens is a question of law that we review de novo. Nunu v. Risk , 612 S.W.3d 645, 660 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) .
Here, Status Lounge sued the defendants for libel and business disparagement. Status Lounge concedes that its claims relate to the defendants’ exercise of the right of free speech. Thus, the defendants have satisfied their initial burden.
For each claim, Status Lounge has the burden to prove by a preponderance of the evidence that the defendants’ statements were false, i.e., not substantially true. See Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc. , 603 S.W.3d 409, 417 (Tex. 2020) (); Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen , 525 S.W.3d 671, 700 (Tex. 2017) (); KBMT Operating Co. v. Toledo , 492 S.W.3d 710, 715 (Tex. 2016) (); see also ...
To continue reading
Request your trial