NO CV IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS VIRGILIO AVILA AND UNIVISION TELEVISION GROUP, INC.

Transcription

1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 April 23 P2:33 Lisa Matz CLERK IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS VIRGILIO AVILA AND UNIVISION TELEVISION GROUP, INC., Appellants, v. F.B. LARREA, Appellee. Appeal from the 95 th Judicial District Court of Dallas County, Texas (Hon. Ken Molberg, Presiding) BRIEF OF APPELLEE Cynthia Hollingsworth John M. Lozano Texas Bar No Texas Bar No HOLLINGSWORTH WALKER LLP LAW OFFICE OF JOHN M. LOZANO Campbell Centre II, Ste Starlight Rd., Suite N. Central Expressway Dallas, Texas Dallas, Texas (214) Phone (214) Phone (214) Fax (214) Fax ATTORNEYS FOR APPELLEE

2 TABLE OF CONTENTS STATEMENT OF FACTS 1 SUMMARY OF ARGUMENT.3 ARGUMENT AND AUTHORITIES...4 I. STANDARDS OF REVIEW..4 II. III. IV. LARREA HAS NOT CONCEDED THAT THIS CASE IS GOVERNED BY THE CITIZENS PARTICIPATION ACT, CHAPTER 27 CIVIL PRACTICES & REMEDIES CODE...5 THIS COURT HAS NO JURISDICTION OVER THIS ATTEMPTED APPEAL..5 IF THE COURT DEEMS THE MOTION TO DISMISS WAS DENIED BY OPERATION OF LAW, THE DENIAL WAS NOT REVERSIBLE ERROR..10 A. Univision was not exercising a right of free speech or right to petition by airing the broadcasts.10 B. Falsity of Statements The court granted additional time for discovery relevant to falsity Larrea is not a public figure..14 a. Public controversy.16 b. Larrea s role in the controversy.16 c. Whether the alleged defamation is germane to plaintiff s participation in the controversy.17 d. Appellants Legal Authorities distinguished Clear and Specific Evidence that the Statements Were False..19 ii

3 V. THE STATUTE AUTHORIZES THE TRIAL COURT TO ALLOW DISCOVERY ON THE MOTION TO DISMISS AND TO CONTINUE THE HEARING...23 CONCLUSION & PRAYER...24 CERTIFICATE OF SERVICE 25 iii

4 CASES INDEX OF AUTHORITIES Amoco Prod. v. Salyer, 814 S.W.2d 211 (Tex. App. Corpus Christi 1991, orig. proceeding)..24 Associated Press v. Boyd, No CV, 2005 WL (Tex. App. Dallas May 16, 2005, no pet.) (mem. op.)...21 Beardon v. Steward, 659 S.W.2d 64 (Tex. App. Amarillo 1978, no writ).8 Bradbury v. Scott, 788 S.W.2d 31 (Tex. App. Houston [1st Dist.] 1989, writ denied)..10 Brueggemeyer v. ABC, 684 F. Supp. 452 (N.D. Tex. 1988)...18 City of Houston v. Kilburn, 849 S.W.2d 810 (Tex. 1993).9 Clark v. American Broad, Co., Inc., 684 F.2d (6th Cir. 1982).15 Downer v. Amalgamated Meatcutters & Butcher Workmen of North America, 550 S.W.2d 744 (Tex. Civ. App. Dallas 1977, write ref d n.r.e.) 23 Duncan v. Texas Dept. of Public Safety, 6 S.W.3d 756 (Tex. App. Tyler 1999, no writ) 8 Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) 4 Fenno v. Sam Reece Air Conditioning & Heating, Inc., 572 S.W.2d 810 (Tex. App. Houston, 1978 (no writ).8 Fitzgerald v. Penthouse Intern l, Ltd., 691 F.2d 666 (4th Cir. 1982) 15 Gertz v. Robert Welch, Inc., 418 U.S. 323 (174) Kelly v. Stock Bldg. Supply, 319 S.W.3d 903 (Tex. App. Austin 2010, no pet.)...9 Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123 (2nd Cir. 1984).15 iv

5 Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369 (Tex. 1984)..10 Morrill v. Cisek, 226 S.W.3d 545 (Tex. App. Houston [1st Dist.] 2006, no pet.)...10 NW Communications of Texas, Inc. v. Power, CV, 2000 WL (Tex. App. Dallas July 28, 2000, pet. denied)..22 Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467 (Tex. App. Dallas 1994, writ denied)..23 Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859 (5th Cir. 1978) 17 Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) 21, 22 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) 4, 14, 15 STATUTES & RULES TEX. CIV. PRAC. & REM. CODE (b)(6)..5 TEX. CIV. PRAC. & REM. CODE (4)(B)-(D) 12 TEX. CIV. PRAC. & REM. CODE TEX. CIV. PRAC. & REM. CODE , 6 TEX. CIV. PRAC. & REM. CODE (a)...5 TEX. CIV. PRAC. & REM. CODE (c)...2, 6 TEX. R. CIV. PRAC. & REM. CODE , 6, 8, 10 TEX. CIV. PRAC. & REM. CODE (b)...5 TEX. CIV. PRAC. & REM. CODE (b).6, 8, 9, 23 TEX. CIV. PRAC. & REM. CODE , 9, 23 TEX. CIV. PRAC. & REM. CODE (b).13 v

6 TEX. CIV. PRAC. & REM. CODE TEX. R. APP. P (a)(1)(b) 1 TEX. R. APP. P. 42.3(a)...5 vi

7 STATEMENT OF FACTS At the outset, it is noteworthy that much of what Appellants refer to as facts throughout their brief are their own opinions based on hearsay or double hearsay and are disputed by Appellee Larrea. TEX. R. APP. P (a)(1)(b). F.B. Larrea has been a lawyer in good standing with the State Bar of Texas since (CR 59) He brought this action against Virgilio Avila and Univision Television Group, Inc. for defamatory statements made in broadcasts that ran on a Univision Television station on May 2 and 3, 2011 and were down loaded to the Univision website. (CR 5) The suit alleges that broadcasts orchestrated by Avila contained numerous statements and allegations that were untrue, partially untrue in some instances, or taken out of context and misleading. The broadcasts, among other harmful statements, falsely asserted that Larrea was breaking the law or committing a crime by disseminating his business cards in public, falsely asserted that Larrea had never visited a particular client in jail, falsely asserted that Larrea had allowed a client to be deported due to his negligence, and falsely asserted that Larrea had withheld from the District Attorney s office evidence that would have exonerated his client. (CR 22, 23, 31, 32, 59-62) The broadcast posted on the worldwide internet was entitled Abogado en Dallas, Estafa indocumentados or, in English: Lawyer in Dallas Defrauding the Undocumented despite the fact 1

8 that neither of the clients who had been contacted by Univision had described their complaints as fraud or fraudulent in their interviews. (CR 59) When the reporter was developing his story, he shoved a microphone in Larrea s fact at the courthouse and in front of his peers. (CR31, RR19) Larrea s attorney had written a letter to Univision requesting that Appellants meet with him to let him explain the facts and to refrain from disseminating the harmful misrepresentations a month before the broadcasts. (RR 19, Ex.1) This letter was ignored. (CR20) This suit for defamation was filed on August 29, (CR 5) Twenty-five days later, and before any discovery could be had, Appellants filed their answer along with a motion to dismiss under Texas Civil Practices & Remedies Code (CR10, 12) Pursuant to that statute, all discovery was suspended until such time as the court ruled on the motion to dismiss. TEX. CIV. PRAC. & REM. CODE (c). The court held a hearing on October 18, 2011 and implicitly determined that Chapter 27 applied to this suit. The court granted Larrea additional time for limited discovery on the issues of the falsity of the statements involved and whether Univision acted with actual malice. (CR 90) The trial court refused to find that Larrea was a public figure. Id. 1 Larrea had attached a request for disclosure that was not answered. 2

9 This appeal is attempted because Appellants contend that the motion to dismiss was denied by operation of law and that such denial is immediately appealable. On January 20, 2012, this Court stayed further action in the trial court, including discovery. SUMMARY OF ARGUMENT This appeal is attempted under the Citizens Participation Act, Chapter 27 of the Civil Practices & Remedies Code. Appellants have not met their burden to show that the broadcasts complained of were a result of their right to exercise free speech or right to petition, thus invoking the provisions of Chapter 27. Therefore, no interlocutory appeal is permitted and this Court does not have jurisdiction. The Court also has no jurisdiction because the trial court did rule on the Appellants motion to dismiss within 30 days as required by statute. The motion was not denied by operation of law. Because the motion to dismiss was not denied, there is no right to an interlocutory appeal. If the Court deems the motion to dismiss was denied by operation of law, there was no error in the denial. Appellants have not proved by a preponderance of evidence that they were exercising a right of free speech or the right to petition. Moreover, despite this Court s order prohibiting discovery, Larrea disputes and Appellants did not prove that Larrea is a public figure. The so-called public controversy was created by Appellants themselves. Larrea presented clear and 3

10 specific evidence that the statements were false and, therefore, the trial court had no authority to grant the motion to dismiss. Chapter 27 of the Civil Practices & Remedies Code authorizes the trial court to allow discovery related to a motion to dismiss and this Court erred in preventing that discovery. ARGUMENT AND AUTHORITIES I. STANDARDS OF REVIEW This Court should review the issue involving statutory construction de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Whether Appellants met their burden to demonstrate they were exercising a right of free speech or right to petition is reviewed for sufficiency of evidence. TEX. R. CIV. PRAC. & REM. CODE If Chapter 27 of the Civil Practices & Remedies Code applies and if Appellants demonstrated that they were exercising a right of free speech or right to petition by a preponderance evidence, Larrea s cause of action is reviewed to determine whether there was clear and specific evidence of a prima facie case for each essential element of the claim. TEX. CIV. PRAC. & REM. Code Whether Larrea is a limited-purpose public figure, is a question of law that the trial court reviews de novo. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). 4

11 II. LARREA HAS NOT CONCEDED THAT THIS CASE IS GOVERNED BY THE CITIZENS PARTICIPATION ACT, CHAPTER 27 CIVIL PRACTICES & REMEDIES CODE Larrea has not conceded that this case is governed by the Citizens Participation Act and, in fact, contended that the Act did not apply. (RR 11, 12, 13; CR 55, 62) Appellants had the burden to but did not establish that this case is governed by the Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE (a) and (b). As discussed in more detail below, Appellants did not demonstrate by a preponderance of evidence that the lawsuit is based on their right to free speech or right to association. Moreover, this Court s order halting the discovery in the trial court prevented Larrea from presenting more evidence establishing a prima facie case for the essential elements of his claims for defamation. III. THIS COURT HAS NO JURISDICTION OVER THIS ATTEMPTED APPEAL This Court should dismiss this case because the order complained of is an interlocutory order that is not appealable. TEX. R. APP. P. 42.3(a). Appellants filed their motion to dismiss the appeal under the relatively new Citizens Participation Act, Chapter 27 of the Civil Practices & Remedies Code. 2 The trial court heard the motion and signed an order within 30 days. As allowed by Section (b)(6), the court found good cause to allow specific limited discovery on the issue of (a) 2 All section references below are to Chapter 27 of the Civil Practices & Remedies Code. 5

12 the falsity of the statements involved and (b) whether the defendants acted with actual malice. The Court further ordered that such discovery was to be completed within 90 days and continued the hearing until discovery was completed. Because the court did not specifically grant or deny the motion to dismiss, Appellants contend that the order was overruled by operation of law. However, Appellants misconstrue the statute and improperly attempt to appeal an interlocutory order that was authorized by the statute and clearly not appealable. Chapter 27 of the Code provides that a motion to dismiss may be filed if the legal action is based on, relates to, or is in response to a party s exercise of the right of free speech, right to petition, or right of association All discovery in the case is suspended until the court has ruled on the motion to dismiss, except as provided by Section (b). TEX. R. CIV. PRAC. & REM. CODE (c). Section of the Code provides that if a court does not rule on a motion to dismiss under Section in the time prescribed by Section (30 days), the motion is considered to have been denied by operation of law and the moving party may appeal. Because it is undisputed that the court did rule within the 30-day time period and the court did not deny the motion to dismiss, the order is interlocutory and not appealable. Significantly, Section does not state that if the court does not grant or deny the motion within 30 days, it is 6

13 deemed to have been denied by operation of law. Clearly, that is not the meaning of the statute because the statute specifically provides that the court may allow discovery relevant to the motion before it rules on the motion to dismiss. The court was within its discretion to allow discovery on discreet issues especially since no discovery had been answered. At the hearing on the motion to dismiss, there was a question of whether Larrea was a public figure and whether Univision acted with malice. (Absent a determination that Larrea was a public figure, Larrea s burden in the underlying suit is to prove negligence by a preponderance of evidence and is not malice, which must be proved by clear and convincing evidence. McLemore at 571.) Larrea s attorney presented a letter he had ed to the station manager at Univision on April 1, 2011, after its reporter had accosted Larrea at the courthouse with questions about his handling of Saucedo s case. (RR 19-21) The letter informed Univision of the true facts regarding that case. The letter was offered to demonstrate that Larrea needed to conduct limited discovery of the facts to show that Appellants knew the falsity of broadcasts before they aired. The letter included, among other, the facts that Saucedo was unstable and that his staff had had to call 911 because of her erratic, irrational behavior. The letter informed Univision that the interviews were based on false and misleading information that would be harmful to Larrea if disseminated and requested that Univision meet with 7

14 Larrea to give him the opportunity to explain the facts before running any story. (RR 21, Ex. 1) The letter was ignored. (RR 20) The Court considered this letter and allowed additional time for Larrea to depose the station manager at Univision for the limited purpose of determining the falsity of the broadcast and whether Univision had acted with malice or reckless disregard. (CR 90) In Section (b), the Code specifically provides that the court (on motion by a party or on the court s own motion), may allow specified and limited discovery relevant to the motion to dismiss. That is what the court did in this case. The court ruled. It did not fail to rule in the time prescribed by Section and, thus, the motion was not overruled by operation of law. The purpose of Chapter 27 is to safeguard the constitutional rights of persons to speak and associate freely and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury The court s order, allowing additional time for discovery was in keeping with the statute s specific provisions, was within the court s discretion, and is a non-appealable interlocutory order. It is fundamental that this Court has jurisdiction only if the trial court order in question is an appealable order. Duncan v. Texas Dept. of Public Safety, 6 S.W.3d 756, 758 (Tex. App. Tyler 1999, no writ); Beardon v. Steward, 659 S.W.2d 64, 66 (Tex. App. Amarillo 1978, no writ); Fenno v. Sam Reece Air 8

15 Conditioning & Heating, Inc., 572 S.W.2d 810 (Tex. App. Houston 1978, no writ). Because the motion to dismiss was not denied by written order or by operation of law, the trial court s order is interlocutory and not appealable. The only action that this Court may take is to dismiss the case. Id. See City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993); Kelly v. Stock Bldg. Supply, 319 S.W.3d 903 (Tex. App. Austin 2010, no pet.). This is not a case where the trial court just sat on a motion to dismiss and the motion was denied by operation of law due to inaction by the court. Instead, the court signed an order allowing limited discovery relevant to the falsity of the statements involved and whether the defendants acted with actual malice (i.e. with knowledge that the statements were false or with reckless disregard of whether the statements were false), as specifically allowed by Section (b), before ruling on the motion. (CR 90) The trial court ruled on the motion by allowing additional time for discovery related to the defense of the motion to dismiss. Because the trial court did not deny the motion to dismiss, the order is not appealable under Section , and this Court must dismiss the attempted appeal. Because this Court has no jurisdiction over this attempted appeal, the Court must vacate its January 20 th order granting temporary emergency relief so that Larrea can conduct the limited discovery authorized. 9

16 IV. IF THE COURT DEEMS THE MOTION TO DISMISS WAS DENIED BY OPERATION OF LAW, THE DENIAL WAS NOT REVERSIBLE ERROR Larrea believes that this Court should dismiss the appeal for lack of jurisdiction because the trial court did not deny the motion. Should the Court conclude that the motion was overruled by operation of law, the Court should affirm the denial of the motion to dismiss because, in defaming lawyer Larrea, Univision was not exercising a protected right to free speech or right of petition. Univision s statements and actions were defamatory per se as defined by statute and common law. See TEX. CIV. PRAC. & REM. CODE ; Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex. App. Houston [1st Dist.] 2006, no pet.); Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App. Houston [1st Dist.] 1989, writ denied) (a statement that injuries a person in his office, profession, or occupation is considered libel per se); Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (a statement that falsely charges a person with the commission of a crime is considered libel per se). A. Univision was not exercising a right of free speech or right to petition by airing the broadcasts In order to avail itself of the procedure under Chapter 27, it was Univision s burden to show by a preponderance of evidence that it was exercising a right of free speech or the right to petition. TEX. R. CIV. PRAC. & REM. CODE Univision argues that its broadcasts were an exercise of its free speech rights 10

17 because it was a matter of public concern. It contends that by airing the broadcasts, Univision alerted viewers that Larrea s associate had solicited prospective clients in front of the Dallas County jail and that Larrea had failed to render them competent legal services. (Appt. Brief at 14) Neither of the attempted justifications demonstrates that the dishonest broadcasts were protected free speech because they were about matters of public concern. The reporter simply tried to make a story that he could turn into a matter of public concern. Appellants statement that it is beyond cavil that Chapter 27 applies to Larrea s defamation claim is quite an exaggeration. (Appt. Brief at 15) Univision asked the reporter to go out and find a story on Larrea and he did so without regard to the facts or the reliability of his sources. (CR 17, 18) Univision broadcast this report after being informed that the story was full of lies. (RR 19, Ex 1) This was not a case of a reporter interviewing a couple of disgruntled clients but rather a reporter taking an active role in creating the story. For example, the reporter, without checking out the statements from Saucedo, made his own conclusion that her experience with Larrea was a nightmare. (CR 30; RR 60) (Univision video fades to lying client, who is sobbing). (CR 21) This is the same client who was the complainant in the felony criminal case against Alcantara who had not been released from jail because he was an undocumented worker. (CR 59-62) Saucedo was upset because Alcantara was still in jail for 11

18 felony assault on a child, charges she, herself, had filed. (CR 60) She went on a tirade in Larrea s office where she threatened the staff and ripped the phone line out. (RR Ex. 1) But Appellants Larrea did not want to know these facts; they wanted a sensational story on Larrea. Here the reporter created a story attempting to incriminate Larrea because Larrea s associate was, according to the reporter, improperly soliciting business. He contacted Saucedo and Ramirez, neither of whom ever complained about the manner in which they received the business cards. (CR 18, 59) But there is nothing illegal about the fact that someone was handing out Larrea s business cards. This is hardly a matter of public controversy. The reporter tries to portray this as a matter of public concern through the improper use of innuendo in his interview of supposedly disgruntled clients. It was the reporter s own concern that he come up with a matter of public controversy to justify the merit of his broadcast. Nothing sinister had been done and there was certainly no public outcry or concern. In another stretch of imagination, Appellants argue that the broadcast was a an exercise of its right to petition. (Appt s Brief at 14) They cite Sections (4)(B)-(D), which relate to a communication under consideration or that is likely to encourage consideration or that is likely to enlist public participation of an issue by a legislative, executive, judicial, or other governmental body or 12

19 proceeding. They argue that the broadcasts are likely to prompt the State Bar of Texas and the City of Dallas to consider or review the issue of attorneys soliciting prospective clients outside the county jail and then failing to render the services for which they were paid. (Appt. Brief at 16) The State Bar of Texas is not one of the entities referred to in this section. The City of Dallas is presumably included but what could the city of Dallas do? There is nothing illegal about handing out business cards. How does the reporter know that legal services were not rendered or not rendered competently? Larrea s affidavit shows to the contrary. (CR 58-62) The reporter created this so-called issue by manipulating the interviews and failing to check out the basis for alleged complaints. He misrepresented that a cited city ordinance forbids handing out business cards, when it does not. (CR 60) Then, the reporter confronts a woman passing out cards and tells her on camera to admit that what she is doing is illegal. (RR 17, 31) That is not covering an issue; that is the reporter injecting himself to create a story. Appellants have not met their burden to show that they were exercising their right of free speech or their right to petition which they were required to do in order to have the trial court grant the motion to dismiss. TEX. CIV. PRAC. & REM. CODE (b). 13

20 B. Falsity of Statements 1. The court granted additional time for discovery relevant to falsity Larrea does not dispute that, if it applies, Chapter 27 provides that the trial court may not dismiss a legal action if the plaintiff establishes by clear and specific evidence a prima facie case for each essential element of his claim. Here, the court allowed additional discovery related to the falsity and the maliciousness of the statements so the issue of the prima facie case was never developed. To the extent that this Court rules that the motion to dismiss was denied, Larrea contends that there is no or insufficient evidence that Larrea is a limited-purpose public figure or that the Appellants were reporting a matter of public concern. 2. Larrea is not a public figure As his counsel argued to the trial court, Larrea pleaded and filed an affidavit that he is not a public figure. (RR 22, CR 62) The significance of this is that it changes the burden and quantum of proof and, therefore, what constitutes a prima facie case. Where the plaintiff is a public figure, he must prove by clear and convincing evidence that a defendant published a false and defamatory statement with constitutional actual malice. Otherwise, his burden in the underlying case is to prove falsity and fault by a preponderance of evidence. McLemore, 978 S.W.2d at 571. There is no presumption that a plaintiff is a public person. Appellants 14

21 arguments that Larrea is a limited-purpose public figure is not supported by the facts, the law or sense of fair play. In determining whether Larrea is a limited-purpose public figure, the Court must determine as a matter of law that (1) there is a controversy that is public, (2) that Larrea has more than a trivial role in the controversy, and (3) that the alleged defamation is germane to Larrea s participation in the controversy. McLemore, 978 S.W.2d at Although the supreme court did not reach this issue, the opinion in McLemore indicated that plaintiffs who are drawn into a controversy cannot be categorized as limited purpose public figures. McLemore at 572, citing Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123, (2nd Cir. 1984); Fitzgerald v. Penthouse Intern l, Ltd., 691 F.2d 666, 668 (4th Cir. 1982); Clark v. American Broad, Co., Inc., 684 F.2d. 1208, 1218 (6th Cir. 1982); But cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (174). Appellants state that the test of whether Larrea is a limited-purpose public figure is easily satisfied here, but their arguments demonstrate the dangerous precedent that would be set if this Court condones the actions of an irresponsible reporter and station creating its own public concern to the detriment of any citizen and, particularly, someone who is a member of the State Bar of Texas. Larrea is not a public figure simply because Univision targeted him and used its reporter to make a story they thought would be of public interest. 15

22 a. Public controversy Appellants contend that Larrea has already been involved in public controversy related to his legal services since 2009 because they aired a complaint against Larrea, which generated other complaints against him. As pointed out below (and Appellants admitted), no action was taken by the State Bar of Texas. (CR 32) Nor was there ever any public controversy. Before Univision broadcast and downloaded its reports, Larrea s lawyer informed them that its story was false and misleading. (RR 19-22, Ex. 1) Despite being presented with the true facts, they continue to argue that Larrea failed to provide competent legal service which was bound to result in public attention. (Appts Brief at 31) b. Larrea s role in the controversy Appellants, who are not lawyers, argue that Larrea accepted payments from two clients and then failed to provide them with competent legal services. Therefore, they say, Larrea engaged in conduct that was bound to result in public attention and comment. (Appts Brief at 31) But, this is nothing more than Univision s statements and innuendo that Larrea did not provide competent legal services. Although it could have easily done so, and was given the opportunity, Univision did not determine the veracity of its own legal conclusions. To the extent that there was a public controversy, which Larrea disputes, Larrea had no role in it except by being the target of irresponsible journalism. The controversy 16

23 was in the imagination of an overzealous reporter who came up with a story instead of covering one. c. Whether the alleged defamation is germane to plaintiff s participation in the controversy Appellants cite but do not really discuss whether the alleged defamation is germane to Larrea s participation in the so-called controversy in determining he is a limited-purpose public figure. Perhaps it s because Larrea is clearly not a limited-purpose public figure. The controversy and Larrea s role in it were created by Appellants. The Appellants, who set up this alleged public controversy, baldly claim that because they have determined that Larrea s legal services were inadequate, the alleged defamation is germane to Larrea s participation in that controversy. (Appt. Brief at 31) According to Appellants, a reporter can take uncorroborated statements of a disgruntled client and recklessly publish those statements without checking them out and, thereby, create a public controversy which would give the reporter and his broadcaster a protected status for his irresponsible conduct. That is not, and should not be, the law. But that is the conduct that Appellants are asking the Court to approve in this appeal and use to determine whether Larrea is a public figure. d. Appellants legal authorities distinguished Appellants cite Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859 (5th Cir. 1978) for the authority that an individual is a public figure if he voluntarily 17

24 engaged in a course that was bound to invite attention and comment. There, Playboy Magazine referred to Rosanova as a mobster. It was undisputed that Rosanova had been the subject of previous published newspaper and other media reports of his association and activities with organized crime. Rosanova did not dispute that he had those associations and activities. The court concluded that this was not a case in which the public had no legitimate interest. Under those very different facts, the court concluded that Rosanova was a public figure, subject to media contact as such. Id. at 861. They also cite Brueggemeyer v. ABC, 684 F. Supp. 452 (N.D. Tex. 1988) for the proposition that that plaintiff in a defamation case voluntarily engaged in a course that was bound to invite attention and comment. There, the evidence showed that there had been a public controversy concerning the bulk meat and freezer beef retail sales industry, in general, and Brueggemeyer, in particular, for ten years. Among other things, Brueggemeyer had paid penalties in several jurisdictions throughout the United States for his fraud. There were numerous publications, consumer complaints, government legal actions, BBB investigations, and media attention to his fraud dating back to 10 years before the broadcast. Id. at 454, 458. Neither of these cases remotely resembles the facts in this case. 18

25 3. Clear and Specific Evidence that the Statements Were False There was clear and specific evidence that the statements made in the broadcasts that are the basis of this lawsuit are false. The broadcast came about because of a reporter s desire to make a story against Larrea because someone passed out his cards outside the courthouse. Appellants ask this Court to accept as truth, the statements that were allegedly made to Avila by a news producer who had allegedly received the statements from a disgruntled client. (CR 17) Appellants argue that these statements were true even though it would have been very easy to determine that they were false, especially in light of Larrea s letter to the station a month before the broadcast aired. (RR Ex. 1) In one instance, Saucedo hired Larrea to represent her husband (Alcantara) in a felony criminal case for endangering a child. The broadcast characterized the case as a nightmare due to Larrea s negligence. (CR 30, 60) The facts are that Alcantara was arrested because he had thrown a glass at Saucedo and the glass shattered and hit their baby. Saucedo then reported the incident to the police. (CR 59) Alcantara was unable to bond out of jail because he had a pre-existing federal immigration hold that prevented his release. (CR 60) Contrary to the broadcast, Larrea had indeed visited his client in jail, a fact that could have been easily verified through court records, but was not. (CR 60, 61; RR Ex.1) In another part of the broadcast, the reporter stated that he had proof from C.P.S. that Saucedo s 19

26 husband had been exonerated but that Larrea failed to use it to have the criminal case dismissed. (CR 22) That assertion was not true. (CR 61) Even if C.P.S. had chosen not to take further action, the prosecuting attorney would not have dismissed the case simply with that information. Id. The broadcast further spuriously stated that a public defender was able to have Alcantara s case disposed of his case in one week when Larrea had not been able to do so in three months. (CR33). The facts are that the State had not indicted Alcantara and Larrea could not get a Court setting until he was indicted. (CR60) Moreover, the broadcast unscrupulously fails to mention the numerous s, appearances, and negotiations that Larrea conducted on Alcantara s behalf that resulted in a reduction of the charge from a felony to misdemeanor. (The change in the charge reduced the range of maximum punishment from a 10-year prison sentence to a one-year county sentence with credit for 3 days for every 1 day he spent in jail). (CR 61) All the public Defender did was plea him out to a sentence that Larrea had negotiated with the prosecuting attorney. Id. Moreover, the broadcast falsely stated that handing out business cards is a violation of a City ordinance. There is no such ordinance. Another client, Ramirez, hired Larrea to represent her for immigration preremoval consultation with her husband, Mendoza. (CR 59) Although he was apparently deported, she never complained about the manner in which she received 20

27 Larrea s card. (CR 59) The reporter nonetheless used her unhappiness with the result of her husband s case as an alleged complaint of improper solicitation of business (CR 30, 59) ( The case of Mr. Felix Alcantara ended in a nightmare for his family. Roxanne Ramirez has the same story). There was clear and specific evidence that the broadcasts were false and misleading. A publication can convey a defamatory meaning by omitting or juxtaposing facts, even though each individual statement considered alone might be literally true or non-defamatory. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). Appellants contend that several of this Court s precedents establishing those discrepancies between a third-party allegation and what was reported did not affect the gist of a broadcast and thus render the report true or untrue. These cases are taken out of context and do not apply to this case. For example in Associated Press v. Boyd, No CV, 2005 WL (Tex. App. Dallas May 16, 2005, no pet.) (mem. op.). The article reporting on the opening statements of trial reflected that the SEC sued Boyd for allegedly helping a securities broker defraud investors and noted that the broker had been convicted and was serving time in prison. The article did not state that the suit against Boyd was a civil one. This Court held that even though that fact was omitted, Boyd had to show that the article s gist or sting is false and defamatory. There, this Court concluded that 21

28 had the articles specifically noted that the SEC proceeding was civil in nature, it would not have materially changed the gist or sting of the publications in the average reader s mind. Id. at *3. Here the stories run were based on lies, not just on omitted information, which had been called to Appellants attention before they were broadcast. Larrea has established a prima facie case that the gist or sting of the publication is false and defamatory and were certainly published in such a way that they created a substantially false and defamatory impression by omitting material facts and juxtaposing facts in a misleading. See Turner at 114. Appellants also cite NW Communications of Texas, Inc. v. Power, CV, 2000 WL (Tex. App. Dallas July 28, 2000, pet. denied) (not designated for publication). There this Court exonerated the owner of KDFW and its reporter because their broadcast concerning a vendor was substantially true despite discrepancies about the work the vendor had charged for. This Court decided that the amount of the overcharge was of secondary importance and not material to determining the gist of the broad cast. Id. at *3. The court concluded that the summary judgment evidence established as a matter of law that the broadcast was substantially true and the plaintiff failed to produce evidence that created a material issue of fact that the broadcast was false. Id. at *11. Here, Larrea has presented clear and specific facts that the broadcasts were false and the reasoning based on the facts in Power does not apply. Neither do the opinions in 22

29 Rogers v. Dallas Morning News, Inc, 889 S.W.2d 467, (Tex. App. Dallas 1994, writ denied) or Downer v. Amalgamated Meatcutters & Butcher Workmen of North America, 550 S.W.2d 744, 747 (Tex. Civ. App. Dallas 1977, write ref d n.r.e.) help Appellants. In those cases, the Court held that misstatements that were substantially true would not support a cause of action. Here, it cannot be argued with a straight face that the statements and innuendo in the broadcasts were substantially true. V. THE STATUTE AUTHORIZES THE TRIAL COURT TO ALLOW DISCOVERY ON THE MOTION TO DISMISS AND TO CONTINUE THE HEARING Appellants contend that the trial court s order is void or at least clear error as it pertains to discovery and the continuance. (Appts. Brief at 33) Although the statute does not say so, Appellants contend that the discovery must take place within 30 days of the hearing on the motion and the deadline to rule. Id. at 34. Appellants argue that nothing in Chapter 27 allows a trial court to continue the hearing on a motion to dismiss beyond 30 days from the time it is first heard. But, neither does Chapter 27 prohibit the trial court from continuing the hearing. To the contrary, the Code provides that the court may allow discovery. TEX. CIV. PRAC. & REM. CODE (b). This section does not require that the discovery relevant to the motion must be heard within 30 days of the hearing. The Code does provide that if the court does not rule within 30 days, it is denied by operation of law. TEX. CIV. PRAC. & REM. CODE However, 23

30 here, the court did rule. As argued above regarding this Court s jurisdiction, the trial court had and properly exercised its discretion to allow discovery relevant to the motion to dismiss, especially in light of the dispute over whether Larrea was a public figure and whether Appellants had acted maliciously or with reckless disregard of the truth. To the extent that Appellants real complaint is that the trial court had no discretion to allow 120 days for additional discovery, that issue was suitable to mandamus but not as an interlocutory appeal. See, e.g., Amoco Prod. v. Salyer, 814 S.W.2d 211, 212 (Tex. App. Corpus Christi 1991, org. proceeding) (legislative continuance). CONCLUSION AND PRAYER For these reasons, Larrea asks the Court to vacate the order granting temporary relief, and dismiss the appeal for want of jurisdiction. Alternatively, if the Court concludes that the motion to dismiss was denied by operation of law, Larrea asks the Court to affirm the denial and remand the trial court for further proceedings. Respectfully submitted, HOLLINGSWORTH WALKER /s/ Cynthia Hollingsworth Cynthia Hollingsworth 24

31 Texas Bar No Campbell Centre II, Suite N. Central Expressway Dallas, Texas (214) Phone (214) Fax John M. Lozano Texas Bar. No LAW OFFICE OF JOHN M. LOZANO 9900 Starlight Rd, Ste 200 Dallas, Texas (214) Phone (214) Fax ATTORNEYS FOR APPELLEE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served by electronic filing on this 23 rd day of April 2012 to the following counsel of record: Charles Chip Babcock JACKSON WALKER L.L.P. 901 Main Street, Suite 6000 Dallas, Texas cbabcock@jw.com /s/ Cynthia Hollingsworth 25