                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00740-CV

                                             Art REYNA,
                                              Appellant

                                                 v.

                                 Irene BALDRIDGE and Kathy Hill,
                                           Appellees

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014-CI-03985
                          Honorable Cathleen M. Stryker, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 15, 2015

AFFIRMED

           Appellant Art Reyna was sued by Appellees Irene Baldridge and Kathy Hill for libel per

se based on a printed campaign advertisement distributed shortly before a Leon Valley City

Council election in May 2013. Reyna moved to dismiss Appellees’ suit under the Texas Citizens

Participation Act (TCPA), but the trial court denied his motion, and he filed this interlocutory

appeal. Because Appellees established by clear and specific evidence a prima facie case for each

essential element of their libel per se claims, and Reyna failed to establish by a preponderance of

the evidence each essential element of any defense, we affirm the trial court’s order.
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                                         BACKGROUND

       Reyna, a member of the Leon Valley City Council, was sued by Baldridge and Hill—then

incumbent city council members—for libel per se. When Baldridge and Hill sought reelection in

May 2013, Reyna mailed a printed campaign advertisement to voters days before the election. In

the ad, Reyna republished excerpts from pending civil litigation against Baldridge and alleged that

Hill had misappropriated city funds.      Reyna asked citizens to vote for the candidates he

recommended and added these sentences:

       Their opponents in the race—Irene Baldridge, Monica Alcocer[,] and Kathy Hill—
       have each demonstrated that their own interests matter more than yours at City Hall.
       Whether the recent lawsuit by Leon Valley property owners outlining criminal
       wrongdoing on the part of Baldridge and Alcocer for personal gain or Hill’s
       diverting the public proceeds of the City’s 60th birthday party to a private interest
       group, their record is clear—they chose private gain over the public good.

Baldridge and Hill lost their reelection bids, and they sued Reyna. Reyna moved to dismiss the

suit under section 27.003 of the TCPA. The trial court denied the motion, and Reyna filed this

interlocutory appeal.

                             TEXAS CITIZENS PARTICIPATION ACT

A.     Purpose of the Act

       The TCPA is intended “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.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2014);

accord In re Lipsky, No. 13-0928, 2015 WL 1870073, at *6 (Tex. Apr. 24, 2015) (orig.

proceeding); United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc., 430

S.W.3d 508, 511 (Tex. App.—Fort Worth 2014, no pet.).




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B.      Motion to Dismiss

        Under the TCPA, “[i]f a 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, that party may file a

motion to dismiss the legal action.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003; accord United

Food, 430 S.W.3d at 511. The TCPA imposes burdens on both the movant and the nonmovant.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005; United Food, 430 S.W.3d at 511.

        1.      Movant’s Initial Burden

        The movant must show “by a preponderance of the evidence that the legal action is based

on, relates to, or is in response to the party’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; accord

Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025, at *2 (Tex. Apr. 24, 2015); United

Food, 430 S.W.3d at 511. If the movant meets this initial burden, the burden shifts to the

nonmovant. Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San Antonio 2014, no pet.)

        2.      Nonmovant’s Burden

        The nonmovant must “establish[] by clear and specific evidence a prima facie case for each

essential element of the claim in question.” In re Lipsky, 2015 WL 1870073, at *8 (alteration in

original) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)); accord United Food, 430

S.W.3d at 511. In its review of the evidence, the court may consider circumstantial evidence. In

re Lipsky, 2015 WL 1870073, at *5.

        Circumstantial evidence may be used to “create[] an inference to establish a central fact.”

Id. (citing TEX. R. EVID. 401, 402). “Bare, baseless opinions do not create fact questions, and

neither are they a sufficient substitute for the clear and specific evidence required to establish a

prima facie case under the TCPA.” Id. at *9 (“‘[C]onclusory statement[s] . . . [are] insufficient to

create a question of fact to defeat summary judgment.’” (second, third, fourth alterations in
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original) (quoting Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013))). But if the nonmovant

provides clear and specific evidence of each essential element of her claim “sufficient as a matter

of law to establish a given fact if it is not rebutted or contradicted,” she has met her burden. Id. at

*6. If the nonmovant meets her burden, the trial court must deny the motion unless the movant

meets an additional burden. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); United Food,

430 S.W.3d at 511.

       3.      Movant’s Additional Burden

       If the nonmovant meets her burden, the burden shifts back to the movant. TEX. CIV. PRAC.

& REM. CODE ANN. § 27.005(d); United Food, 430 S.W.3d at 511. If the movant then “establishes

by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s

claim,” the trial court must dismiss the suit. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d);

accord United Food, 430 S.W.3d at 511.

                                      STANDARD OF REVIEW

       “We review de novo a trial court’s ruling on a motion to dismiss under the TCPA.” United

Food, 430 S.W.3d at 511; accord Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—

Houston [14th Dist.] 2013), disapproved of on no circumstantial evidence ground by In re Lipsky,

2015 WL 1870073. We “consider the pleadings and supporting and opposing affidavits stating

the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.006(a); accord In re Lipsky, 2015 WL 1870073, at *3; Herrera, 441 S.W.3d at 741; United

Food, 430 S.W.3d at 511–12. “Accordingly, we review de novo whether (1) the movant satisfied

the initial burden imposed by section 27.005(b), (2) the nonmovant satisfied the burden imposed

by section 27.005(c), and (3) the movant satisfied the burden imposed by section 27.005(d).”

United Food, 430 S.W.3d at 511; accord Herrera, 441 S.W.3d at 741.



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                                     REYNA’S INITIAL BURDEN

        As discussed above, a TCPA motion to dismiss has three burdens. TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(b), (c), (d); United Food, 430 S.W.3d at 511; see also Herrera, 441 S.W.3d

at 741. In his first issue, Reyna argues the trial court erred if it determined he did not meet his

initial burden. Appellees concede Reyna met his initial burden, and we agree. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.005(b) (movant’s initial burden); United Food, 430 S.W.3d at 511; see

also Herrera, 441 S.W.3d at 741. Thus, Reyna’s first issue is moot.

                                        APPELLEES’ BURDENS

        Reyna’s second, third, and fourth issues address Appellees’ burdens: whether Appellees

established by clear and specific evidence a prima facie case for each essential element of their

libel per se claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (nonmovant’s burden);

United Food, 430 S.W.3d at 511. Baldridge and Hill both sued Reyna for libel per se. Their

original petition appears to assert claims of statutory libel and common law libel per se. We begin

with the essential elements of libel per se.

A.      Essential Elements for Libel Per Se

        The essential elements of common law defamation vary depending on the defendant (media

or non-media), the subject of the statement (e.g., public official or private citizen), and the matter

(public or private concern). See generally WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571

(Tex. 1998). Here, the parties do not dispute that Baldridge and Hill are public officials, Reyna

was not a media defendant, and the matter is of public concern. Given these facts, the essential

elements of a common law libel per se claim are that the defendant “(1) published a statement; (2)

that was defamatory concerning the plaintiff; (3) while acting with . . . actual malice, if the plaintiff

was a public official or public figure, . . . regarding the truth of the statement.” Id.



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       1.      Publish a Statement

       “Defamatory statements are ‘published’ if they are communicated orally, in writing, or in

print to some third person capable of understanding their defamatory import and in such a way that

the third person did so understand.” Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 496 (Tex.

App.—Dallas 2003, no pet.) (quoting Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex.

App.—Dallas 1986, no writ)); accord AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135,

147 (Tex. App.—Fort Worth 1996, writ denied).

       2.      Defamatory to Plaintiff

       A statement that “tends to injure a living person’s reputation . . . or to impeach any person’s

honesty, integrity, virtue, or reputation” is defamatory by statute. TEX. CIV. PRAC. & REM. CODE

ANN. § 73.001 (West 2011); accord Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013). Under

the common law, “[a] statement that injures a person in her office, profession, or occupation is

typically classified as defamatory per se.” Hancock, 400 S.W.3d at 64; accord Waste Mgmt. of

Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 151 (Tex. 2014). “A false statement

which charges a person with the commission of a crime is libelous per se.” Leyendecker & Assocs.

v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984). We construe an alleged defamatory statement “as

a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence

would perceive it.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004).

       3.      Actual Malice

       “[A]ctual malice concerns the defendant’s attitude toward the truth, not toward the

plaintiff.” Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 858 (Tex. 2005). It “requires

proof that the defendant made a statement ‘with knowledge that it was false or with reckless

disregard of whether it was true or not.’” New Times, 146 S.W.3d at 162 (quoting Huckabee v.

Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000)). Actual malice is satisfied by either
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knowledge of the statement’s falsity or reckless disregard for its truth. Waste Mgmt., 434 S.W.3d

at 157–58.

       To show reckless disregard for the truth, a public official must provide evidence “that the

defendant in fact entertained serious doubts as to the truth of his publication [or] evidence that the

defendant actually had a high degree of awareness of . . . [the] probable falsity of his statements.”

Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002) (second, third alterations in original) (quoting

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)) (internal quotation

marks omitted); accord Huckabee, 19 S.W.3d at 420. “[T]he failure to investigate the facts before

speaking as a reasonably prudent person would do is not, standing alone, evidence of a reckless

disregard for the truth[.]” Bentley, 94 S.W.3d at 591 (citing Harte-Hanks, 491 U.S. at 667–68).

However, “evidence that a failure to investigate was contrary to a speaker’s usual practice and

motivated by a desire to avoid the truth may demonstrate the reckless disregard required for actual

malice.” Id.

       “Reckless disregard is a subjective standard, focusing on the defendant’s state of mind . . .

at the time of publication.” New Times, 146 S.W.3d at 162, 168. The defendant’s state of mind

can be proved by circumstantial evidence. Freedom Newspapers, 168 S.W.3d at 853 n.13 (“‘The

defendant’s state of mind can—indeed, must usually—be proved by circumstantial evidence.’”

(quoting Bentley, 94 S.W.3d at 596)). Courts must be careful when considering factors such as

motive, but the defendant’s motive or care may be considered in determining actual malice.

Bentley, 94 S.W.3d at 591 (quoting Harte-Hanks, 491 U.S. at 668).

B.     Evidence for Each Essential Element

       Appellees’ burdens are to present clear and specific evidence showing a prima facie case

for each essential element of their libel claims. In re Lipsky, 2015 WL 1870073, at *3; United

Food, 430 S.W.3d at 511. A prima facie case means “evidence sufficient as a matter of law to
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establish a given fact if it is not rebutted or contradicted. It is the ‘minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.’” In re Lipsky, 2015

WL 1870073, at *6 (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.

2004) (per curiam)). We recite points from the pleadings and evidence from Appellees’ affidavits.

         1.       Publish a Statement

         Appellees presented the campaign advertisement showing the complained of statements.

Reyna does not dispute that he mailed the printed statements to voters or that voters were able to

understand the statements in the advertisement. 1 Appellees’ evidence meets their burdens to show

Reyna published a statement. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (TCPA

affidavits); In re Lipsky, 2015 WL 1870073, at *3 (same); Austin, 118 S.W.3d at 496 (publication);

AccuBanc Mortg. Corp., 938 S.W.2d at 147 (same).

         2.       Defamatory to Plaintiff

         The campaign advertisement states Appellees “chose private gain over the public good,”

Baldridge was being sued for “criminal wrongdoing,” and Hill was “diverting . . . public proceeds

. . . to a private interest group.” Construing these statements “as a whole in light of the surrounding

circumstances based upon how a person of ordinary intelligence would perceive [them],” New

Times, 146 S.W.3d at 154, we conclude that Reyna’s statements tended to injure Appellees’

reputations; impeach their honesty, integrity, or reputation; and accuse them of criminal conduct.

See TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (injuring reputation); Hancock, 400 S.W.3d at

64 (injuring reputation, honesty, integrity); Leyendecker, 683 S.W.2d at 374 (alleging criminal

conduct). Thus, Appellees met their burdens to show libel under the statute and common law.




1
 Reyna argues he “did not state that the allegations made in the lawsuit that outlined criminal wrongdoing were true”
and that he “made no false statements by placing portions of the lawsuit on the campaign piece.”

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        3.      Evidence of Actual Malice Regarding Baldridge Statement

        In her pleadings and affidavits, Baldridge presented the following facts as clear and specific

evidence that Reyna knew his statements about her were false or he exercised a reckless disregard

for the truth. See Waste Mgmt., 434 S.W.3d at 157 (requiring a public figure to prove actual malice

by known falsity or reckless disregard for the truth); Bentley, 94 S.W.3d at 591 (same).

        Irene Baldridge was a licensed real estate broker, city council member, and city council

candidate. While Baldridge was seeking re-election, Daniel Bee—a commercial property owner

who was seeking to rezone his property—sued the property neighbors, Baldridge, and another city

council candidate who opposed Bee’s rezoning application; Baldridge voted against the

application. In Reyna’s campaign advertisement, he included accusatory excerpts from Daniel

Bee’s pending lawsuit. Reyna supported Bee’s rezoning application, called public meetings to

persuade neighbors to support Bee’s application, but eventually voted against it. Reyna knew of

Bee’s claims of Baldridge’s alleged conflict of interest months before the election. If Baldridge

had such a conflict, it would be a Class A misdemeanor which would be a ground to remove her

from office. Reyna had ready access to information that would have negated Baldridge’s alleged

conflict of interest. Reyna had previously called for a formal investigation of another city council

member regarding alleged misconduct, but Reyna never asked for an investigation of Baldridge’s

alleged conflict, did not personally investigate the allegation against her, did not earlier raise the

issue publicly, and made his first public statement about Baldridge’s alleged conflict of interest

five days before the election. Reyna also had a strong motive to lie about Baldridge: he wanted to

defeat her and Hill, to get his political allies on the city council, and to gain control of the council.

Reyna stated in a June 2014 affidavit in the Bee suit—that Baldridge “had, or may have had, a

conflict of interest,” which suggests he had doubts about the truth of his allegations against

Baldridge.
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        4.      Baldridge’s Prima Facie Evidentiary Burden Met

        Considering this evidence, we must determine whether it “creates an inference to establish

a central fact”—that Reyna had serious doubts about the truth of, or purposefully avoided learning

about, Baldridge’s alleged conflict of interest. See In re Lipsky, 2015 WL 1870073, at *5.

Baldridge presented evidence that Reyna knew months before the election of her alleged conflict

of interest but, contrary to prior practice, did not investigate the allegation nor did he raise it until

days before the election. See Bentley, 94 S.W.3d at 591 (“[E]vidence that a failure to investigate

was contrary to a speaker’s usual practice and motivated by a desire to avoid the truth may

demonstrate the reckless disregard required for actual malice.”). She also argued Reyna had a

motive to lie to increase his own political power, and releasing the information only days before

the election would greatly reduce Baldridge’s ability to respond to the allegation. See id.

        Having considered the evidence, we conclude it is more than “the ‘minimum quantum of

evidence necessary to support a rational inference that [Baldridge’s] allegation [that Reyna

exercised actual malice to the truth] is true.’” In re Lipsky, 2015 WL 1870073, at *6 (quoting In

re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223) (quantity of evidence); New Times, 146

S.W.3d at 162 (elements of actual malice); Bentley, 94 S.W.3d at 591 (public official’s burden).

Thus, Baldridge met her prima facie evidentiary burden to show Reyna exercised actual malice

towards the truth.

        5.      Evidence of Actual Malice Regarding Hill Statement

        In her pleadings and affidavits, Hill presented the following facts as clear and specific

evidence that Reyna knew his statements about her were false or he exercised a reckless disregard

for the truth. See Waste Mgmt., 434 S.W.3d at 157 (requiring a public figure to prove actual malice

by known falsity or reckless disregard for the truth); Bentley, 94 S.W.3d at 591 (same).



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       Kathy Hill was a Leon Valley City Council member seeking reelection. The city council

approved a $10,000 budget to celebrate the city’s birthday. The city’s Director of Finance Report

shows the authorized funds were expended on the approved activity, properly accounted for, and

none were diverted to any private group. As a councilmember, Reyna had full access to the city’s

financial records. No councilmember, including Reyna, ever asked—either before or after the

May 2013 election—for the council to investigate any alleged misappropriation by Hill. Reyna

could have readily obtained any information about the expenditures, but Reyna had strong motive

to lie about Hill to gain control of the city council for his personal political ambitions.

       6.      Hill’s Prima Facie Evidentiary Burden Met

       Considering this evidence, we must determine whether it “creates an inference to establish

a central fact”—that Reyna had serious doubts about the truth of, or purposefully avoided learning

about, whether Hill diverted city funds to a private interest group. See In re Lipsky, 2015 WL

1870073, at *5. Hill presented evidence that Reyna had access to the city’s financial information,

had previously called for an investigation of another council member’s alleged misconduct, but

did not investigate the facts regarding Hill’s alleged misappropriation of funds, and she argued

Reyna purposefully avoided investigating because he did not want to know the truth. See Bentley,

94 S.W.3d at 591 (“[E]vidence that a failure to investigate was contrary to a speaker’s usual

practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard

required for actual malice.”). Hill also presented evidence and argued that Reyna had a motive to

lie to gain political power, he knew of the disposition of the funds well before the election, but he

chose not to make his accusation against Hill until days before the election. See id.

       We conclude that Hill’s evidence is more than “the ‘minimum quantum of evidence

necessary to support a rational inference that [Hill’s] allegation [that Reyna exercised actual malice

to the truth] is true.’” In re Lipsky, 2015 WL 1870073, at *6 (quoting In re E.I. DuPont de Nemours
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& Co., 136 S.W.3d at 223). Thus, Hill met her prima facie evidentiary burden to show Reyna

exercised actual malice towards the truth. Having concluded that Baldridge and Hill met their

respective prima facie evidentiary burdens, we overrule Reyna’s second, third, and fourth issues.

                                        REMAINING ISSUES

        Reyna argues that Appellees failed to meet their respective burdens, but he does not

expressly argue that if Appellees met their burdens, he met his additional burden. To the extent

Reyna intended to argue that he met his additional burden, we conclude he failed to “establish[]

by a preponderance of the evidence each essential element of a valid defense to [Appellees’]

claim[s].” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d); United Food, 430 S.W.3d at 511.

        In his fifth issue, Reyna argued the trial court erred if it relied on circumstantial evidence

to create an inference to establish a central fact. When In re Lipsky issued—after the briefs were

filed but before oral argument in this appeal—Reyna acknowledged that Appellees could use

circumstantial evidence to meet their burdens. See In re Lipsky, 2015 WL 1870073, at *5. Reyna’s

fifth issue is overruled.

        In his sixth issue, Reyna contends the trial court erred because it did not award him “court

costs, reasonable attorney’s fees, and other expenses.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.009 (damages and costs); Cruz v. Van Sickle, 452 S.W.3d 503, 522 (Tex. App.—Dallas 2014).

Reyna was not entitled to costs and damages unless he prevailed on his motion, and we will affirm

the trial court’s order denying Reyna’s motion. Reyna’s sixth issue is overruled.

                                           CONCLUSION

        In his appeal of the trial court’s order denying his motion to dismiss under the TCPA,

Reyna argues, and Appellees concede, Reyna met his initial burden to show Appellees’ suit was




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based on his exercise of his right of free speech. Reyna also argues the trial court erred because

Appellees failed to meet their burdens to present prima facie evidence of his libel per se.

       Having reviewed the evidence de novo, we conclude Appellees Irene Baldridge and Kathy

Hill met their burdens to establish by clear and specific evidence a prima facie case that Reyna

committed libel per se by distributing the complained of printed campaign advertisement shortly

before the city council election. Having overruled each of Reyna’s issues, we affirm the trial

court’s order.


                                                  Patricia O. Alvarez, Justice




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