TV Azteca v. Ruiz

• Decision Date: 09 January 2020
• Docket Number: NUMBER 13-18-00287-CV
• Parties: TV AZTECA, S.A.B. DE C.V., Publimax, S.A. de C.V., Azteca International Corporation, Stations Group, LLC, Northstar McAllen License, LLC and Patricia Chapoy, Appellants, v. Gloria de los Angeles TREVINO RUIZ, Individually and on Behalf of Her Minor Child, A.G.J.T., and Armando Ismael Gomez Martinez, Appellees.
• Court: Texas Court of Appeals

611 S.W.3d 24

TV AZTECA, S.A.B. DE C.V., Publimax, S.A. de C.V., Azteca International Corporation, Stations Group, LLC, Northstar McAllen License, LLC and Patricia Chapoy, Appellants,

v.Gloria de los Angeles TREVINO RUIZ, Individually and on Behalf of Her Minor Child, A.G.J.T., and Armando Ismael Gomez Martinez, Appellees.

NUMBER 13-18-00287-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed January 09, 2020

Gil P. Peralez, Peralez Franz LLP, McAllen, TX, Jorge A. Padilla, Jackson Walker, L.L.P., Austin, TX, Thomas J. Forestier, Winstead PC, Houston, TX, Paul C. Watler, Jackson Walker L.L.P., Dallas, TX, for Appellants.

Raymond L. Thomas Jr., Ray Thomas, PC, McAllen, TX, for Appellees.

Before Chief Justice Contreras and Justices Benavides and Longoria

Opinion by Justice Longoria

Appellants TV Azteca, S.A.B. de C.V., Publimax, S.A. de C.V., Azteca International Corporation, Stations Group, LLC, Northstar McAllen License, LLC, and Patricia Chapoy appeal from the district court's order denying appellants' motion to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code. We affirm in part and reverse and remand in part.

I. BACKGROUND

Appellee Gloria de los Angeles Trevino Ruiz (Trevi), a prominent Mexican recording artist, was arrested and jailed in Brazil and Mexico on sex-trafficking charges. After more than four years, Trevi was released in 2004 when her charges were dismissed. Trevi then moved with her family to McAllen, Texas.

On April 14, 2009, Trevi, individually and on behalf of her minor child, A.G.J.T., and appellee Armando Ismael Gomez Martinez, Trevi's husband, brought suit against appellants for defamation, libel per se, slander, defamation per se, business disparagement, civil conspiracy, and tortious interference with existing and prospective contracts and business relationships. Appellees based their petition on allegations that "in late 2008 to early 2009" appellants "aired or caused to be aired television programming" which contained "several defamatory statements about [Trevi]." Appellees alleged that appellants published and re-published "allegations from which [Trevi] had been exonerated."

Appellants TV Azteca, S.A.B. de C.V., Publimax, S.A. de C.V., and Chapoy (Mexican Azteca Parties) responded by filing special appearances in which they contested personal jurisdiction.¹ The remaining appellants, Azteca International Corporation, Stations Group, LLC, and Northstar McAllen License, LLC (U.S. Azteca Parties), filed answers and special exceptions. After the filing of appellees' fourth amended petition, the Mexican Azteca Parties filed special exceptions. The Mexican Azteca Parties and appellees entered into a Rule 11 agreement, that provided, inter alia, that the special exceptions would be withdrawn and that the appellees would file a fifth amended petition with more specificity.

Subsequently, appellees filed their fifth amended petition which identified twenty-two allegedly defamatory statements. Appellants filed a motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA).² See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. The trial court denied the motion to dismiss. This interlocutory appeal followed.

II. TCPA

By a single issue on appeal, appellants contend that the trial court erred in denying their TCPA motion to dismiss because (1) the TCPA applies to appellees' claims, and (2) appellants established their affirmative defense of limitations by a preponderance of the evidence.

A. Standard of Review and Applicable Law

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). Its purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. Id. at 589 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 ). Thus, the TCPA provides a two-step process whereby a defendant who believes a lawsuit responds to his valid exercise of First Amendment rights may seek dismissal of the suit. See id. at 586–87. Under the first step, the movant bears 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" a defendant's exercise of the right of free speech, the right to petition, or the right of association. Id. at 586–87 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b) ). If the movant meets that burden, then under the second step, 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. Id. at 587 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ). Additionally, subsection 27.005(d) requires a court to dismiss the legal action if "the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).

We review de novo a trial court's ruling on a motion to dismiss under the TCPA. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In conducting this review, we review the pleadings and evidence in a light favorable to the nonmovant. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W.3d 71, 80–81 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

B. Applicability of the TCPA

We first address whether the TCPA applies. Appellees contend that (1) the TCPA is inapplicable because the underlying litigation began prior to the TCPA's effective date and (2) the TCPA is inapplicable to the claims against the Mexican Azteca Parties because they are not U.S. citizens.

1. TCPA's Effective Date

The original petition was filed on April 14, 2009, prior to June 17, 2011, the effective date of the TCPA. See Act of June 17, 2011, 82nd Leg., R.S., ch. 341, § 3, 2011 Tex. Gen. Laws 960, 963 ("The change in law made by this Act applies only to a legal action filed on or after the effective date [June 17, 2011] of this Act. A legal action filed before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose."); Better Bus. Bureau of Metro. Dall., Inc. v. Ward , 401 S.W.3d 440, 443 (Tex. App.—Dallas 2013, pet. denied). "Legal action" is defined as "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6). The fourth amended petition, which for the first time contained fourteen specific alleged defamatory statements, was filed on May 2, 2017. On January 19, 2018, the fifth amended petition was filed and was the live pleading at the time the motion to dismiss was filed. In the fifth amended petition, appellees added descriptive information to each of the fourteen statements from the fourth amended petition, including the author of the statement and where the statement was published, and also included eight additional statements that were not previously pleaded.³

While the original petition alleged defamation, libel per se, slander, defamation per se, business disparagement, civil conspiracy, and tortious interference with existing and prospective contracts and business relationships, it did not present any specific publication of any defamatory statement until the fourth amended petition. "Each distinct publication of a defamatory statement inflicts an independent injury from which a defamation cause of action may arise." Akin v. Santa Clara Land Co. , 34 S.W.3d 334, 340 (Tex. App.—San Antonio 2000, pet. denied) (citing Marshall Field Stores, Inc. v. Gardiner , 859 S.W.2d 391, 394 (Tex. App.—Houston [1st Dist.] 1993, writ dism'd w.o.j.) ; Fisher v. Beach , 671 S.W.2d 63, 67 (Tex. App.—Dallas 1984, no writ) ). Accordingly, the fourth and fifth amended petitions, which were filed after the effective date of the TCPA and contained new, previously unpled defamatory statements, are subject to the TCPA. See James v. Calkins , 446 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (concluding that TCPA applied to claims against appellants, despite the fact that the suit was filed before TCPA's effective date, because appellants were first joined as defendants only after the effective date); Better Bus. Bureau of Metro. Dall. , 401 S.W.3d at 443 (same, noting that the TCPA's definition of "legal action" is "broad and evidences a legislative intent to treat any claim by any party on an individual and separate basis").

2. Applicability to Non-Citizens

Appellees also argue that the TCPA is inapplicable to the claims against the Mexican Azteca Parties because it is intended only to protect the First Amendment rights of citizens. See In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) ("The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits."); see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 ("The purpose of this chapter 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.").

Appellees' argument is that as non-citizens, the Mexican Azteca Parties are not afforded the protection that the TCPA is intended to provide. Appellees rely on Hoffman v. Bailey , a federal district court case out of Louisiana, to support their argument. See 996 F.Supp.2d 477, 481 (E.D. La. 2014). In Hoffman , Louisiana residents brought a defamation suit against a citizen and resident of the United Kingdom, alleging that the U.K. resident sent an email...