Mariann Bacharach v. Eufemia Garcia ( 2015 )

NUMBER 13-14-00693-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARIANN BACHARACH, Appellant,
v.
EUFEMIA GARCIA, Appellee.
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
This is an interlocutory appeal of the denial of a motion to dismiss filed pursuant to
the Texas Citizens Participation Act (TCPA or the Act), also known as an Anti-SLAPP
statute.1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West, Westlaw through
1“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.” See In re Estate of
Check, 438 S.W.3d 829, 830 n.1 (Tex. App.—San Antonio 2014, no pet.). This Anti-SLAPP statute permits
a defendant targeted by a SLAPP suit to move for dismissal if the action relates to the defendant’s exercise
Ch. 46, 2015 R.S.). By five issues, which we have renumbered and organized as two,
pro se appellant Mariann Bacharach contends the trial court erred in denying her motion
to dismiss because: (1) she met her burden of establishing that her statement was a
matter of public concern; and (2) appellee Eufemia Garcia did not meet her burden of
establishing a prima facie case for each element her causes of action. See id. §
27.005(b–c). We affirm.
I. BACKGROUND
Eufemia, the mother of Rogelio Garcia who had a relationship with Bacharach that
had ended, filed suit against Bacharach alleging, among other things, defamation,
defamation per se, intentional infliction of emotional distress, and invasion of privacy. 2
The basis of Eufemia’s suit arises out of information Bacharach published on a website
called liarscheatersrus.com. In the post, which follows in its entirety, Bacharach called
Eufemia a prostitute:
rogelio garcia
This guy is a total sleaze. He is an attorney in Houston and loves
impregnating women while he is married. Stay away from this loser. He
is truly evil. His mother was a prostitute and he has fantasies of turning
women he sleeps with into her. Do not expect him to help you legally. He
will extort sex from you and leave you on your own to defend yourself with
the courts. He is abusive and sick. He disabled a woman in an accident
then forced her to have sex with him for money. He should be in jail.
of the right of free speech, right to petition, or right of association. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003 (West, Westlaw through Ch. 46, 2015 R.S.); see also Kinney v. BCG Attorney Search, Inc., No.
03-12-00579-CV, 2014 WL 1432012, at *1 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op. on
reh’g).
2 The lawsuit was first styled Jane Doe v. Bacharach. When Bacharach filed her motion to
dismiss, she referred to Rogelio Garcia as the “ghost plaintiff.” Subsequently, a second amended original
petition was filed naming Eufemia Garcia, Rogelio’s mother, as the plaintiff. Now on appeal, both parties
identify the plaintiff/appellee as Eufemia Garcia, and we will do likewise.
2
This post included three images that contained, among other things, the words “[no]
cheating” and “cheating husband.”
Bacharach filed a timely motion to dismiss, asserting (1) that this lawsuit fell within
the protection of the Anti-SLAPP statute because she had a right to speak freely; and (2)
that Eufemia could not establish a prima facie case against her as required by the TCPA.3
See id. § 27.003. At the hearing on her motion to dismiss, Bacharach provided testimony
in response to questions regarding her burden of establishing the applicability of the
statute. On October 16, 2014, the trial court denied Bacharach’s motion to dismiss.
This interlocutory appeal followed. See id. § 27.008.
II. APPLICABLE LAW
The purpose of the TCPA 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.” Id. § 27.002. The
TCPA is to “be construed liberally to effectuate its purpose and intent fully,” but it “does
not abrogate or lessen any other defense, remedy, immunity, or privilege available under
other constitutional, statutory, case, or common law or rule provisions.” Id. § 27.011.
The TCPA provides a procedure for the expedited dismissal of “retaliatory lawsuits that
seek to intimidate or silence [defendants] on matters of public concern.” In re Lipsky,
460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). In sum, the Act provides,
[a] two-step process is initiated by motion of a defendant who believes that
the lawsuit responds to the defendant's valid exercise of First Amendment
3 Bacharach’s motion to dismiss appears to seek only the dismissal of Eufemia’s defamation
claims. However, because the parties do not make that distinction on appeal, we will address the motion
generally as to all claims. See TEX. R. APP. P. 47.1.
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rights. Under the first step, the burden is initially on the defendant-movant
to show “by a preponderance of the evidence” that the plaintiff's 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.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). If the movant is able to
demonstrate that the plaintiff's claim implicates one of these rights, the
second step shifts the burden to the plaintiff to “establish [ ] by clear and
specific evidence a prima facie case for each essential element of the claim
in question.” Id. § 27.005(c).
Id.
In this appeal, Bacharach claims that the statute protects her right to speak freely
in public. The statute broadly defines “the exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.001(3). The statute defines “communication” as “the making or
submitting of a statement or document in any form or medium.” Id. § 27.001(1). It is
undisputed that Bacharach’s publication or post on the liarscheatersrus.com website is a
“communication” under the statute. The statute defines a “matter of public concern” to
include issues related to health or safety, community well-being, and the provision of a
good, product, or service in the marketplace, among other things. Id. § 27.001(7). It is
our analysis of whether Bacharach’s statement regarding Eufemia is a “matter of public
concern” that is determinative of this appeal.
When determining whether to dismiss the legal action, the court must consider “the
pleadings and supporting and opposing affidavits stating the facts on which the liability or
defense is based”; it may consider pleadings as evidence. Id. § 27.006(a). The TCPA
does not require a movant to present testimony or other evidence to satisfy the movant’s
evidentiary burden. Serafine v. Blunt, ___S.W.3d ___, ___, No. 03-12-00726-CV, 2015
WL 3941219, at *4 (Tex. App.—Austin June 26, 2015, no. pet. h.) (op. on reh’g).
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III. STANDARD OF REVIEW
“We consider de novo the legal question of whether the movant has established
by a preponderance of the evidence that the challenged legal action is covered under the
Act.” Id. at *2 (citing Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied), disapproved on other grounds by In re
Lipsky, 460 S.W.3d at 587–88). “We also review de novo a trial court's determination of
whether a nonmovant has presented clear and specific evidence establishing a prima
facie case for each essential element of the challenged claims.” Id. (citing Rehak
Creative Servs., 404 S.W.3d at 726).
IV. APPLICABILITY OF TCPA
By her first issue, Bacharach contends that the TCPA applies because she
demonstrated that she was exercising her right to free speech on an issue of public
concern and, thus, the trial court erred when it did not grant her motion to dismiss. This
issue addresses the first step of the dismissal process where Bacharach must show “by
a preponderance of the evidence” that Eufemia’s claim “is based on, relates to, or is in
response to [Bacharach’s] exercise of” in this case, “the right of free speech.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(b).
Bacharach presents the following argument in support of this issue:
The language of the statute indicates it is protecting the right to speak freely
in public. The statute does not specify that speaking freely means only free
speech regarding public figures and limited purpose public figures. The
statute is clear and specific in its meaning that its purpose is to ensure the
rights of others to speak freely in public over matters of concern to them
without fear of retribution.
Bacharach also asserts that “[b]ecause [her] statement related to health or safety, it fell
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within the statutory definition of ‘matter of public concern.’” However, Bacharach offers
no support for her assertion that her statement that Eufemia was a prostitute related to
health and safety. Instead, Bacharach’s testimony at the hearing reflected a concern
directed toward the behavior of Rogelio, not Eufemia. For example, during her direct
examination at the hearing on her motion to dismiss, Bacharach confirmed that she had
“posted some things about Mr. Garcia and also said his mother was a prostitute,” but
insisted that “[t]he posts weren’t directed at Mrs. Garcia.” Bacharach also testified that
“at the time, [she] believed the subject matter concerning Rogelio Garcia was a matter of
public concern, which is why [she] filed an Anti-SLAPP suit.” When asked by the trial
court, “How should this [case filed by Eufemia and not Rogelio] be dismissed under this
statute?”, Bacharach replied, “I believe under the statute it should be dismissed because
for all reasonable purposes, I believed [the posting] to be true,” and “I believe I exercised
reasonable care and I had no malicious intent directed at Mrs. Garcia.”
Finally, without citations to the record or to authority, Bacharach contends that her
statements “relate to laws and public services that were being corruptly abused for
malicious purposes and believes these should be of public concern.” Based on our
review of the record, it appears that the statements Bacharach references in this
argument are those that she made in the post about Rogelio and not his mother. And as
the trial court informed Bacharach at the hearing on her motion to dismiss, “This is not
about Rogelio Garcia. This is about Eufemia Garcia.” The public-concern argument
that Bacharach brings to this Court regarding statements she posted about Rogelio does
not support her motion to dismiss Eufemia’s lawsuit. We are not persuaded by this
argument.
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Based on our de novo review of the record on appeal, 4 we conclude that
Bacharach has not satisfied the first step of the process—showing that the TPCA applies.
She has not established by a preponderance of the evidence that Eufemia’s claim is
“based on, relates to, or is in response to” Bacharach’s exercise of “the right of free
speech.” See id. § 27.005(b); In re Lipsky, 460 S.W.3d at 586. Bacharach has not
shown that her communication was a matter of public concern; specifically, she has not
shown that her statement about Eufemia related to health or safety. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.001(7). The evidence simply does not support her arguments.
In sum, considering de novo this legal question, we conclude that Bacharach has
not established by a preponderance of the evidence that Eufemia’s legal action is covered
under the Act. See Serafine, ___ S.W.3d at ___, 2015 WL 3941219, at *2. We overrule
Bacharach’s first issue. Because this issue is dispositive of the appeal, we need not
address Bacharach’s remaining issue. See TEX. R. APP. P. 47.1.
V. CONCLUSION
We affirm the order of the trial court denying Bacharach’s motion to dismiss.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
31st day of August, 2015.
4 We reviewed the following: the pleadings, a copy of the post at issue, the transcript of
Bacharach’s testimony at the hearing on her motion to dismiss, Eufemia’s affidavit, an unchallenged
document titled “Affidavit of [Bacharach’s son,] Julias Bacharach,” and the affidavit of David Gingras, an
attorney and Digital Millennium Copyright Act agent who provided a review of information logged by certain
website’s servers.
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