Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-03577
Justices Bridges, Brown, and Nowell
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.
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.
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.
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
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).
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.
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.
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
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).
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.See id. § 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