Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
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,
GLORIA DE LOS ANGELES TREVINO RUIZ, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, A.G.J.T., AND ARMANDO ISMAEL GOMEZ MARTINEZ, Appellees.
appeal from the 139th District Court of Hidalgo County,
Chief Justice Contreras and Justices Benavides and Longoria
L. LONGORIA JUSTICE.
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
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,
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."
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. 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special exceptions would be withdrawn and that the appellees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.
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). See Tex. Civ. Prac. & Rem.
Code Ann. § 27.003. The trial court denied the motion to
dismiss. This interlocutory appeal followed.
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.
Standard of Review and Applicable Law
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. §
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).
Applicability of the TCPA
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.
TCPA's Effective Date
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
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").