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Mazaheri v. Tola

Court of Appeals of Texas, Fifth District, Dallas

July 31, 2019

MEHRDAD MAZAHERI, M.D., D/B/A THE LASIK CENTER, Appellant
v.
AHMAD RAZA TOLA, Appellee

          On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-03577

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         This is an interlocutory appeal from the trial court's orders granting appellee Ahmad Raza Tola's motions to dismiss and for attorney's fees, sanctions, expenses, and costs under the Texas Citizens Participation Act (TCPA) See Tex. Civ. Prac. & Rem. Code Ann. §27.001-.011. Appellant Mehrdad Mazaheri, M.D., d/b/a The Lasik Center, sued Tola for defamation and defamation per se in connection with online reviews posted by Tola. In six issues, Mazaheri contends the trial court erred in (1) granting the motion to dismiss because Mazaheri established by clear and specific evidence a prima facie case for his defamation per se cause of action; (2) denying Mazaheri's motion for limited discovery and to reschedule a hearing on the motion to dismiss; (3) granting Tola's motion to strike affidavit testimony; and (4) awarding attorney's fees to Tola and not to Mazaheri. For the following reasons, we affirm the trial court's order.

         Background

         Mazaheri, a doctor, operates the Lasik Center in Richardson, Texas. Tola consulted Mazaheri about Lasik surgery and paid a deposit for the surgery, but then decided against it. According to Mazaheri's petition, Tola "threatened to write negative reviews on social media if Mazaheri did not make an acceptable payment to Tola after Tola canceled the medical treatment," Mazaheri refused, and Tola "subsequently posted false statements on social media regarding Mazaheri." Mazaheri asserted claims against Tola for defamation and defamation per se.

         Tola moved to dismiss Mazaheri's action under the TCPA because it was filed against Tola in retaliation for the online reviews, an exercise of Tola's right of free speech, and Mazaheri could not satisfy his burden of producing clear and specific evidence establishing a prima facie case of each element of his claims to avoid dismissal under the TCPA. Tola also sought attorney's fees and sanctions.

         Following a hearing, the trial court granted Tola's motion to dismiss Mazaheri's defamation and defamation per se claims. Thereafter, Tola filed a separate motion for attorney's fees, sanctions, expenses, and costs, attaching evidence in support of the attorney's fees requested. The trial court granted the motion and entered an order awarding attorney's fees, expenses, and sanctions in favor of Tola. Mazaheri appeals the trial court's orders.[1]

         TCPA Dismissal

         The TCPA sets out a two-step procedure to expedite the dismissal of claims brought only to intimidate or silence a defendant's exercise of First Amendment rights. See Civ. Prac. & Rem. §§ 27.002, .003(a), .005; ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). To assert a motion to dismiss under the TCPA, a party must show by a preponderance of the evidence that a claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Id. §§ 27.003(a), .005(b); Dallas Morning News, Inc. v. Hall, 2019 WL 2063576, at *4-5 (Tex. May 10, 2019). The burden then shifts to the nonmovant to establish by "clear and specific evidence a prima facie case for each essential element of the claim in question." Civ. Prac. & Rem. § 27.005(c). Even if the nonmovant satisfies the second step, the trial court must dismiss the claim if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Id. § 27.005(d).

         When deciding whether to dismiss a legal action under the TCPA, the trial court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). The TCPA does not define the phrase "clear and specific evidence," but the supreme court has held the standard requires more than mere notice pleadings and a plaintiff "must provide enough detail to show the factual basis for its claim." In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). A prima facie case "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted" or, stated another way, it is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. at 590. We review de novo whether a party carried its assigned burden. Hall, 2019 WL 2063576, at *4-5.

         A defamatory statement is one that tends to injure a person's reputation; such a statement is defamatory per se if it injures a person in the person's office, profession, or occupation. Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013). To maintain a defamation claim, the plaintiff must prove (1) the defendant published a false statement of fact, (2) the statement defamed the plaintiff, (3) the defendant acted with actual malice, if the plaintiff is a public figure or a public official, or negligently, if the plaintiff is a private individual, and (4) the statement proximately caused damages. See Anderson v. Durant, 550 S.W.3d 605, 617-18 (Tex. 2018); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). For a defamation per se claim, a plaintiff must prove the first three elements, but not the fourth element because the common law deems such statements so obviously hurtful that the jury may presume general damages. Anderson, 550 S.W.3d at 618.

         The threshold question in a defamation case is whether the words used "are reasonably capable of a defamatory meaning." Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). To be defamatory, a publication "should be derogatory, degrading, somewhat shocking, and contain elements of disgrace." Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). A publication that is "merely unflattering, abusive, annoying, irksome or embarrassing, or that only hurts the plaintiff's feelings, is not actionable." Id. Unless a publication is ambiguous, the question of whether it is reasonably capable of a defamatory meaning is a question of law, which we review de novo. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). The "inquiry is objective, not subjective." New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004). Whether a publication is defamatory is not determined based on individual statements read in isolation. Turner, 38 S.W.3d at 114-15. Instead, the determination is whether, construed as a whole in light of the surrounding circumstances, a person of ordinary intelligence would perceive the publication to be defamatory. Id.

         If a statement is not verifiable as false, it is not defamatory. Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22 (1990)). Even if a statement is verifiable as false, it does not give rise to liability if the "entire context in which it was made" discloses that it is merely an opinion masquerading as a fact. Backes v. Misko, 486 S.W.3d 7, 24 (Tex. App.-Dallas 2015, pet. denied); see Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002) (whether to classify a statement as fact or opinion is based on statement's verifiability and entire context in which statement is made).

         Mazaheri concedes, and his petition makes clear, that his claims fall under the TCPA because they are based on Tola's exercise of his right of free speech. However, Mazaheri contends the trial court erred in granting the motion to dismiss because he established by clear and specific evidence a prima facie case for each element of his defamation per se claim.[2]See id. ยง 27.005(c). In support, he directs us to the following statements, which he asserts are false, in Tola's online review: (1) it takes two weeks to recover from a PRK procedure; (2) it does not make sense to perform a topography test the morning of the procedure; (3) Tola conferred with multiple doctors; (4) Mazaheri misrepresented the cost of the eye examination and initial visit; and (5) Mazaheri would solely charge the insurance ...


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