                                                                                 ACCEPTED
                                                                               13-14-0693-cv
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                       7/27/2015 11:04:17 AM
                                                                      CECILE FOY GSANGER
                                                                                      CLERK


                            13-14-00693-CV
                                              FILED IN
                                      13th COURT OF APPEALS
          IN THE   THIRTEENTH COURTCORPUS  CHRISTI/EDINBURG, TEXAS
                                    OF APPEALS
                                      7/27/2015 11:04:17 AM
                   HIDALGO COUNTY, TEXASCECILE FOY GSANGER
                                               Clerk



                     MARIANN BACHARACH
                               Appellant
                                    v.
                         EUFEMIA GARCIA
                                Appellee


                On Appeal from the 389th District Court
                     of Hidalgo County, Texas
                       Cause No. C-5535-14-H
                The Honorable Letty Lopez, Judge Presiding


                         BRIEF OF APPELLEE


Chris Carmona
Texas Bar No. 24072022
PO BOX 7137
Houston, Texas 77248
Tel. (832)444-4293
Fax (832)460-2724

                          COUNSEL FOR APPELLEE
                     NO ORAL ARGUMENT REQUESTED
                          TABLE OF CONTENTS


Index of Authorities……………………………………………………………..iii
Abbreviations, Record References, and Party Identification……………………ix
Issued Presented…………………………………………………………….…..xi
Statement of Facts………………………………………………………………..1
     A. Appellees’ Fact Statement……………………………………………..1
     B. Objections to Appellant’s Fact Statement……………………………..7
Summary of the Argument………………………………………………………8
Argument……………………………………………………………………….11
     I.    Standard of Review……………………………………………….11
           A. Standard of Review of Appellant’s Burden
              Under Section 27.005(b)………………………………………12
           B. Standard of Review of Appellee’s Burden
              Under Section 27.005(c)………………………………………14
     II.   The Trial Court properly denied appellant’s motion to dismiss….18
           A. Appellant’s statements did not exclusively address
              matters of public concern……………..……………………….21
               1. Appellant did not establish by a preponderance of the
                  evidence that her statements were “a matter of public
                  concern.”………………………………………..………..21
               2. The Act should properly be interpreted to apply to all
                  communications which remotely touch on a topic of public
                  debate, else the express legislative intention to protect every
                  person’s constitutional right to bring meritorious lawsuits
                  for demonstrable injury is obviated………………………25
               3. Appellees established by clear and specific evidence a
                  prima facie case for each essential element of each cause
                  of action…………………………………………………..27
               4. Clear and specific evidence established a prima facie case
                  for each element of the common law defamation and the
                  statutory libel causes of action...…………………………27


                                                                                i
          5. Clear and specific evidence established a prima facie case
             for each element of defamation per se…………………...30
          6. Clear and specific evidence established a prima facie case
             for each element of the intentional infliction of emotional
             distress cause of action…………………………………...33
          7. Clear and specific evidence established a prima facie case
             for each element of the invasion of privacy cause of
             action…………………......................................................34
Conclusion……………………………………………………………………...35
Prayer……………………………………………………………………...……35
Certificate of Compliance………………………………………………………37
Certificate of Service…………………………………………………………...37
Appendix………………………………………………………………………..38




                                                                                 ii
                        INDEX OF AUTHORITIES


Cases
Adolph Coors Co. v. Rodriguez,
     780 S.W.2d 477, 488 (Tex. App – Corpus Christi 1989, writ denied)…..31

Avila v. Larrea,
      394 S.W.3d 646, 662 (Tex. App. – Dallas 2012, pet. Filed)…………….12

Bentley v. Bunton,
      94 S.W.3d 579, 583-87, 591…………………………………17, 19, 28, 30

Better Bus. Bureau of Metro. Dallas v. Ward,
      401 S.W.3d 440, 445 (Tex. App. – Dallas 2013, pet. Filed)…………….12

Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc.,
      402 S.W.3D 299, 2013 Tex. App. LEXIS 6057 at *9 and 24, 6067 at *9-
      10 (Tex. App.-Dallas 2013, pet. Filed)…………………………..11, 12, 13

Better Bus. Bureau of Metro Houston v. John Moore Services,
      2013 Tex. App. LEXIS 8756 *8 (Tex. App. – Houston [1st Dist.] 2013, no
      pet.)…………………………………………………………………..12, 15

Carr v. Brasher,
      776 S.W.2d 567, 569 (Tex. 1989)…………..……………………….20, 30

Christy v. Stauffer Publications, Inc.,
      437 S.W.2d 814 (Tex. 1969)…………………………………………….30

City of Brownsville v. Pena,
       716 S.W.2d 677, 682 (Tex. App – Corpus Christi 1986, no writ)………31

City of Keller v. Wilson,
       168 S.W.3d 802, 819-20 (Tex. 2005)……………………………13, 14, 17

Cox Tex. Newspapers, L.P. v. Penick,
     219 S.W.3d 425, 433 (Tex. App – Austin 2007, pet. denied)…………...32


                                                                          iii
Davis v. Davis,
      734 S.W.2d 707, 711 (Tex. App – Houston [1st Dist.] 1987,
      writ ref’d n.r.e.)………………………………………………………….32

Diamond Shamrock Refining & Mktg. Co. v. Mendez,
     844 S.W.2d 198, 203 (Tex. 1992)……………………………………….34

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
     472 U.S. 749, 759-61, 105 S. Ct. 2939, 2945-46, 86 L. Ed. 2d 593
     (1985)………………………………………………………………..29, 30

Evans v. McKay,
     212 S.W. 680, 685 (Tex. Civ. App – Dallas 1919, writ dism’d)………..31

Ex Parte George Tucker,
     220 S.W. 75, 76, 110 Tex. 335, 337 (1920)……………………………..19

Ex Parte Tucci,
     859 S.W.2d 1, 19-26 (Tex. 1993)………………………………………..20

First State Bank v. Ake,
       6056 S.W.2d 696, 702 (Tex. App – Corpus Christi 1980,
       writ ref’d n.r.e.)………………………………………………………….31

Gertz v. Robert Welch, Inc.,
      418 U.S. 323, 347, 94. S. Ct. 2997, 41 L. Ed. 2d 789 (1974)…………...29

Hancock v. Variyam,
     400 S.W.3d at 69…………………………………………………….30, 32

Hearst Corp. v. Skeen,
     159 S.W.3d 633, 636-37 (Tex. 2005)……………………………………29

Hoffman-La Roche, Inc. v. Zeltwanger,
     144S.W.3d 438, 445 (Tex. 2004)……………………………………20, 33

In Re Steven Lipsky,
      2013 Tex, App. LEXIS 4975 *12, 32 (Tex. App. – Ft. Worth, 2013, no
      pet……………………………………………………………………12, 15


                                                                         iv
Industrial Found. Of the South v. Texas Indus. Accident Bd.,
      540 S.W.2d 668, 682 (Tex. 1976), cert. denied…………………………34

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
       341 S.W.3d 323, 337 (Tex. 2011)……………………………………….28

Jain v. Cambridge Petroleum Grp., Inc.,
       395 S.W.3d 394, 2013 Tex. App. LEXIS 2088 (Tex. App. – Dallas 2013,
       no pet.)…………………………………………………………………...12

Klentzman,
      312 S.W.3d at 906………………………………………………………24

Marshall v. Mahaffey,
     974 S.W.2d 942, 950 (Tex. App. – Houston [14th Dist.] 2011, no pet.)…30

McGalliard v. Kuhlmann,
    722 S.W.2d 694, 697 (Tex. 1986)……………………………………….14

Milkovich v. Lorain Journal Co.,
      497 U.S. 1, 19, 110 S. Ct. 2695, 2706, 111 L. Ed.2d 1, 18 (1990)….28, 30

Miranda v. Byles,
     390 S.W.3d at 556……………………………………………………….32

Mission Consol. Indep. Sch. Dist. V. Garcia,
      372 S.W.3d 629, 634 (Tex. 2012)……………………………………….18

Montgomery Indep. Sch. Dist. V. Davis,
     34 S.W.3d 559, 567 (Tex. 2000)………………………………………...14

Nat’l Family Care Life Ins. Co. v. Fletcher,
      57 S.W.3d 662, 669-70 (Tex. App. – Beaumont 2001, pet. denied)…….17

Neely v. Wilson,
      56 Tex. Sup. J. 766 *12, 2013 Tex. LEXIS 511 (June 28, 2013)……16, 20

New Times, Inc. v. Isaacks,
     146 S.W.3d 144, 157 (Tex. 2004)……………………………………….31


                                                                             v
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
     2013 Tex. App. LEXIS 5407 *16-17(Tex. App.—Houston [1st Dist.] May
     2, 2013, no pet.)………………………………………………………….12

O’Brien v. Daboval,
      388 S.W.3d 826, 840 (Tex. App. – Houston [1st Dist.] 2012, no pet.)….28

Peshak v. Greer,
     13 S.W.3d 421, 425-26 (Tex. App – Corpus Christi 2000, no pet.)……..29

Philadelphia Newspapers, Inc. v. Hepps,
      475, U.S. 767, 776-77, 106 S. Ct. 1558, 1564, 89 L. Ed. 2d 783 (1986)..29

Rehak Creative Servs., Inc. v. Witt,
     2013 Tex. App. LEXIS 6196, at *22-23………………………...12, 14, 15

Richardson v. City of Pasadena,
      513 S.W.2d 1, 4 (Tex. 1974)…………………………………………….16

Rodriguez v. Printone Color Corp.,
      982 S.W.2d 69, 72 (Tex. App. – Houston [1st Dist.] 1998, pet. denied…15

Shearson Leham Hutton, Inc. v. Tucker,
      806 S.W.2d 914, 922 (Tex. App – Corpus Christi 1991, writ dism’d
      w.o.j.)…………………………………………………………………….31

Star Telegram, Inc. v. Doe,
      915 S.W.2d 471, 473-74, (Tex. 1995)……………………………….20, 34

Tex. Lottery Comm’n v. First State Bank of DeQueen,
      325 S.W.3d 628, 635 (Tex. 2010)……………………………………….13

Thomas-Smith v. Mackin,
     S.W.3d 503, 509 (Tex. App. – Houston [14th Dist.] 2007, no pet.)……..27

Toles v. Toles,
      45 S.W.3d 252, 260 (Tex. App.-Dallas 2001, pet. Denied)……………..33

Transport Ins. Co. v. Faircloth,
     898 S.W.2d 269, 276 (Tex. 1995)……………………………………….28
                                                                              vi
Thomas-Smith v. Mackin,
     S.W.3d 503, 509 (Tex. App. – Houston [14th Dist.] 2007, no pet.)……..27

Turner v. KTRK TV, Inc.,
     38 S.W.3d 103, 114, 117 (Tex. 2000)……………………………….20, 31

Twyman v. Twyman,
    855 S.W.2d 619, 623 (Tex. 1993)……………………………………….33

West Texas Utilities Co. v. Wills,
      164 S.W.2d 405, 412 (Tex. Civ. App – Austin 1942, no writ)………….31

WFAA-TC. Inc,
    978 S.W.2d at 571……………………………………………………….27

Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro Dallas, Inc.,
     2013 Tex. App. LEXIS 7348 (Tex. App. – Dallas 2013, no pet.)……….12


Statutes
TEX. CIV. PRAC. & REM. CODE § 27.001…………………………………..25
TEX. CIV. PRAC. & REM. CODE § 27.001(3)……………………………….25
TEX. CIV. PRAC. & REM. CODE § 27.001(7)……………………………….26
TEX. CIV. PRAC. & REM. CODE § 27.002………………………………20, 21
TEX. CIV. PRAC. & REM. CODE § 27.009(a)……………………………….11
TEX. CIV. PRAC. & REM. CODE § 27.011…………………………………..26
TEX. CIV. PRAC. & REM. CODE § 27.011(a) and (b)……………………….26
TEX. CIV. PRAC. & REM. CODE § 73.001………………………………20, 28
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001…………………………...25
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(d).……………………….16
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)………..11, 12, 13, 14, 27
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)……………11, 14, 17, 18
TEX. CIV. PRAC. & REM. CODE ANN. § 27.011…………………...20, 21, 26

                                                                           vii
Other Authorities
RESTATEMENT 2ND TORTS, § 652D, cmt…………………………………..34
TEX. CONST. SRT. I, § 8……………………………………………………...19




                                                 viii
             ABBREVIATIONS AND RECORD REFERENCES


Clerk’s Record
The (original) Clerk’s Record is cited as “CR [page number].”
Reporter’s Record – Testimony
Direct Examination of Mariann Bacharach is cited as: “CV Supp Rpt Rec
Volume 1 OF Volume 1”.
Parties
When necessary parties will be referred to as Appellant and Appellee.
Appendices
The citation “App.” Refers to the Appendix to the Brief of Appellant.




                                                                        ix
                       PARTY IDENTIFICATION


APPELLEE
EUFEMIA GARCIA


COUNSEL FOR APPELLEE
CHRIS CARMONA
P.O.BOX 90014
HOUSTON, TX 77290
CHRIS@CAMONALAWOFFICE.COM


APPELLANT
MARIANN BACHARACH
P.O.BOX 8217
HOUSTON, TX 77288
PRO SE
832-352-5926
BACHARACHMARIANN@GMAIL.COM




                                              x
                         ISSUES PRESENTED


1. Did the trial court err denying Appellant’s Motion to Dismiss under the
   Texas Citizens Participation Act?


2. Did Appellant meet her standard of evidence required by the Texas
   Citizens Participation Act in order to shift the burden to Appellee?


3. Did Appellee present a prima facie case for her causes of action?




                                                                             xi
                            STATEMENT OF FACTS


   A. APPELLEE’S FACT STATEMENT
      This case is an interlocutory appeal by Appellant from the 389th District

Court in Hidalgo County as a result of denying Appellant’s Motion to Dismiss

under Chapter 27 of the Texas Civil Practice Remedies Code commonly known as

the Citizen’s Participation Act. Appellee’s petition for numerous causes of action

including libel, libel per se, intentional infliction of emotional distress, negligent

infliction of emotional distress, invasion of privacy, civil rights violation, and gross

negligence were not dismissed.

      This case involves Appellant, Mariann Bacharach and her “scorched earth”

attempt to damage Appellee, Eufemia Garcia. Appellant has attempted a modern

day electronic lynching of Appellees rights to seek redress in the Courts. Appellant

has espoused vile racist threats, taunts, and character assassination of Appellees

reputation by calling Appellee hideous names. Appellant also continues to call

Appellee and her family ethnic and cultural slurs in hopes of intimidating Appellee

into rescinding her complaints against Appellant, Mariann Bacharach. All of the

Appellant’s conduct is actionable, entitling the Appellee to relief from this Court.

      Appellant published information on the internet accusing Appellee of being

a prostitute (CR 267), additionally, Appellant continues a hate inspired campaign


                                                                                       1
on the Internet and via telephone against Appellee and her family. She has

espoused racist rhetoric to the point of Appellee fearing that Appellant, Mariann

Bacharach, might physically hurt her. Appellant has previously shot a lawyer with

a 357 caliber weapon.

       Appellee, is the mother, grandmother, and mother in law of five different

lawyers in the state of Texas. Appellee’s son Rogelio Garcia is a lawyer in good

standing with the State Bar of Texas and has been for approximately 32 years.

Appellee’s son had a relationship with Appellant and after a failed relationship

Appellant threatened Appellee’s son with revenge and attacks not only to himself

and his immediate family, but his law firm, legal representatives and his other

relatives.

       Appellant published information on the internet accusing Appellee, Eufemia

Garcia, the mother of Rogelio Garcia of being a prostitute. Appellant has judicially

confessed, not only in various courts in Harris County but also in the Court

proceedings in the 389th District Court of Hidalgo County, that she was the author

of said posts. Throughout this litigation Appellant has continued to harass

Appellee. To date, Mariann Bacharach has been found in contempt by the 157th

District Court in Harris County and fined $5,000 for continual attacks on

Appellee’s son. Appellee was made aware throughout the year that Mariann

Bacharach had published a post calling the Appellee a prostitute.
                                                                                  2
      As a result of Appellee being called a prostitute, Appellee has been

embarrassed, offended, and humiliated to the point that Appellee has become

anxious, nervous, and depressed. Appellee has had individuals in her community

ask her if she is such person. Appellee’s health has deteriorated to the point that

her quintuple heart surgery symptoms have been exacerbated. Appellee initially

started this lawsuit as Jane Doe because of the embarrassment and humiliation that

she had suffered as a result of the postings by Appellant Mariann Bacharach.

Appellant has now aggravated Appellee’s symptoms by claiming the initial filing

of Jane Doe was not Appellee, Eufemia Garcia, but rather a “ghost plaintiff”. This

has further caused her mental anguish, anxiety, and depression. Appellee foresees

that Appellant, Mariann Bacharach will continue her attacks against Appellee

unless access to the justice system is allowed.

      The defamatory statements that the Appellee was a prostitute constitute libel

and libel per se because they asserted that the Appellee was guilty of sexual and

other vile acts, thereby demeaning her reputation as being honest and trustworthy.

The Appellant’s defamatory statements are false. The truth is that Appellee never

engaged in any improper activity. Appellee testified at the hearing in front of the

389th District Court that she was not and never has been a prostitute in her life.

         The Appellant, Mariann Bacharach, made false and defamatory statements

intentionally by failing to state the truth. The Appellant knew that the statements
                                                                                     3
were false. The Appellant published the defamatory statements with knowledge

that they were false and regard to their falsity.

         As a direct and proximate result of the Appellant’s false and defamatory

statements, the Appellee has endured shame, embarrassment, humiliation, and

mental pain and anguish. Additionally, the Appellee has and will in the future be

seriously injured in her reputation, good name, and standing in the community, and

will be exposed to the hatred, contempt, and ridicule of the public in general.

Consequently, Appellee, seeks actual and exemplary damages.

         In addition to the severe emotional distress the Appellee has suffered, as a

proximate result of the Appellant’s conduct in that, in all reasonable probability,

the Appellee will continue to suffer this mental pain, anguish, and mental

depression for a long time into the future in that the posts that Mariann Bacharach

published are permanent in nature.

       It aggravated Appellee’s condition that Appellant was intentionally trying to

cause damage to Appellees son’s reputation by wrongfully speaking about the

Appellee, herself.

      Appellant did not act like a reasonable person would under the same similar

circumstances and if she had she would not have made a publication disparaging

Appellee’s good name. Appellant is now claiming that Appellee is not actually her


                                                                                    4
but some other male person who happens to be a family member. Appellant,

Mariann Bacharach made no effort to ascertain the falsity of her defamatory

statements about Appellee prior to posting. The Appellant has now exacerbated

Appellees medical conditions in her attempt to embarrass humiliate and threaten

Appellees health.

      Appellant has now attempted to continuously embarrass, humiliate, threaten

and alarm Appellee by filing frivolous, fictional and hearsay “alleged” evidence

calling an additional family member a “ghost” Appellee. Appellant believes that

she can file irrelevant and immaterial information solely for the purpose of

embarrassing Appellee and her family members. The “alleged” evidence that

Appellee has attached to her petition are rumors, innuendos, lies, and fraudulent

data simply submitted to embarrass Appellee and family members. Said alleged

evidence by Appellant has attempted to compound stress on the 86 year old

Appellee who is now, as a result of said stress, seeking medical help for her

damages.

      Appellant has now published a website attacking not only family members

but her legal representative, Chris Carmona. Appellant has telephonically attacked

Appellee’s lawyer in many posts in hopes that said Counsel will abandon his

representation of Appellee in Hidalgo County. Appellee has been threatened and



                                                                                 5
harassed by different people to drop her lawsuit and claiming that she will be

jailed. Appellee believes that these individuals are working with Appellant.

      Appellant has bullied, laughed, and criticized Appellee. Appellant has also

wrongfully stated, wrote, and insinuated that Appellee is not an American and that

her family members are not born Americans. Appellant has also claimed that,

Appellee lives in Poverty or that Appellee has never looked at internet sites nor can

she read, write, or speak English. Appellant has also claimed that her family

members are criminals and/or outcasts of society.

      Appellant’s acts or omissions described above, when viewed from the

standpoint of Appellant at the time of the act or omission, involved an extreme

degree of risk, considering the probability and magnitude of the potential harm to

Appellee and others.     Appellant had actual, subjective awareness of the risk

involved in the above described acts or omissions, but nevertheless proceeded with

conscious indifference to the rights, safety, or welfare of Appellee. The

Appellant’s conduct was malicious, intentional and/or so grossly negligent as to

entitle the Appellee the recovery of exemplary damages.

      Appellant has continued the numerous personal attacks on Appellee by filing

with this Court numerous irrelevant, immaterial and incompetent internet postings

that were never at issue at the hearing for Appellant’s Motion to Dismiss. Said


                                                                                    6
attacks are designed only to paint Appellee in an unflattering light. Appellant’s

brief is replete with accusations and statements which are not relevant to this

appeal, but are presumably included for the sole purpose of attacking, harming, and

attempting to humiliate Appellee. This tactic is consistent with the balance of

Appellant’s brief which focuses on her subjective characterizations of what she

believes to be true. After Appellant’s denial of her Motion to Dismiss Appellant’s

attacks have become more vitriol and more untruthful in the apparent hope that

Appellee will retreat from her lawsuit.

B. Objection to Appellant’s Fact Statement

   This appeal involves Eufemia Garcia as Appellee and Mariann Bachrach as

Appellant. Appellee sued Appellant for among other things defamation,

defamation per se, intentional infliction of emotional distress, and invasion of

privacy. Appellant erroneously believes that she can call Appellee a prostitute as

long as it’s not intentional and as long as she subjectively believes said statement.

Appellant has included numerous lies, innuendoes and rumors throughout this

appeal and in her statement of facts regarding Appellee’s son, Rogelio Garcia. Said

malicious information is included only to embarrass, to humiliate, and to place

Appellee in a false light with the Appellate Court. The Appellee requests that this

honorable Court strike and disregard any documents or statements made by

Appellant that were neither introduced, admitted, or accepted as evidence by the

                                                                                    7
trial Court. The Appellant has attempted to circumvent all the Texas Rules of

Procedure and the Texas Rules of Evidence by attempting to insert documents with

hearsay multiple hearsay, and incompetent evidence in violation of the Texas

Rules of Evidence and Texas Rules of Appellate Procedure. Appellee moves to

strike all of the Court record references by Appellant including Court Records 474,

202, 105, 000, 461, 473, 454, 187, 141-44, 133-135, 56, 453-460, 141-144, 224-

225, 203, 253, 204, 222, and 300. Appellee filed a response to Appellant’s Motion

to Dismiss and specifically objected to each and every attachment. Please see CR

250-265.

      Appellant mistakenly believes that neither other family members nor

Appellee’s legal representative can sue her in other counties for defamation and

other causes of action. Appellee is a lifelong resident of Hidalgo County and

commands her causes of action against Appellant as a result of Appellant calling

Appellee a “prostitute”. Appellant continues to believe and assert that Appellee is a

“ghost” plaintiff even though Appellee was subject to cross examination for more

than an hour at Appellant’s Motion to Dismiss hearing. Appellee has filed her

lawsuit in Hidalgo County in order to attempt to regain her good name with her

community and hold Appellant liable for damages that Appellant proximately

caused to her.



                                                                                    8
                       SUMMARY OF THE ARGUMENT
      Appellant Mariann Bacharach has filed this interlocutory appeal as a result

of her denial of her petition to dismiss based on Chapter 27 of the TEX. CIV.

PRAC. & REM. CODE commonly referred to as the Texas Citizens Participation

Act. Appellee’s lawsuit alleging defamation, defamation per se, intentional

infliction of emotional distress, and invasion of privacy was allowed to continue.

Appellant argued in her direct examination with the Judge of the 389th that Texas

law allows her the right to call Appellee a prostitute so long as Appellant made

said statement unintentionally and as long as she subjectively believed it to be true.

Appellant confessed that she made that statement about Appellee in a post posted

on Liars and Cheaters site, in October of 2013.

      The act which has as its goal to end politicized suits quickly, without

significant expense does not preclude the constitutional rights of its citizens to

pursues legitimate meritorious litigation. The act does not permit Appellant to

make outrageous and false claims without fear of repercussion. Appellant has

utterly failed in meeting her burden that her statement about Appellant was a

matter of free speech regarding a public concern. Appellant further testified to the

Court that Appellee is a private person and not a public person.

      In order to prevail on the Motion to Dismiss, Appellant must show by

preponderance of the evidence, that the activity of which the Appellant complaints

                                                                                    9
is based upon her exercise of right to free speech connected to a matter of public

concern. Appellant testified that Appellee was a private citizen and not a “public

person” and that Appellee’s was not a matter of “public concern”. Appellant filed

an answer with hundreds of attached documents that were irrelevant, immaterial,

and not in compliance with the Texas Rules of Evidence. The Appellant never

introduced nor had any of said documents admitted into evidence at the hearing.

Additionally, Appellant failed to request that the judge make specific findings of

fact or conclusions of law. Appellant crossed examined Appellee for more than an

hour and Appellee denied that she was now or ever a prostitute. The trial Court

was the ultimate finder of fact and was free to and apparently did disbelieve

Appellant. Appellant continues to hide behind the act asserting that vicious false

statements of Appellee was correctly made by her because it was not intentional.

      Appellee provided clear and specific prima facie evidence of each element

of her cause of action even though Appellant failed to meet her burden of proof.

Appellee provided evidence of defamation, defamation per se, intentional infliction

of emotional distress, and invasion of privacy.




                                                                                   10
                                   ARGUMENT
I. STANDARD OF REVIEW
      The standard of review for statutory construction is well settled. Better Bus.

Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299 (Tex. App.-Dallas

2013, pet. Filed). However, this particular statute is written with four distinct and

different standards of review: (i) preponderance of the evidence or factual

sufficiency standard (Section 27.005(b)); (ii) clear and specific evidence, a

heretofore unknown standard (Section 27.005(c)); (iii) a prima facie case or legal

sufficiency standard (Section 27.005(c)); and (iv) "as justice and equity may

require,” an abuse of discretion standard (Section 27.009(a) (1)).

      This Supreme Court has issued several various opinions addressing motions

to dismiss pursuant to the Act, but it has not yet reached the question of the

standard of review to apply to a ruling under Section 27.005(c), nor has it

expressly addressed the standard of review of a determination by the trial court

based on disputed evidence under Section 27.005(b) of the Act, Better Bus. Bureau

of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299, 2013 Tex. App. LEXIS

6057 *24 (‘[W]e need not consider in this case the quantum of proof necessary to

constitute clear and specific evidence of a prima facie case, for each essential

element of a claim because BH DFW failed to offer any evidence of the existence

of its alleged contract with the BBB.”); Better Bus. Bureau of Metro. Dallas v.


                                                                                  11
Ward, 401 S.W.3d 440, 445 (Tex. App. – Dallas 2013, pet. Filed) (plaintiff cited

no evidence to support his claims); Wholesale TV & Radio Adver., LLC v. Better

Bus. Bureau of Metro Dallas, Inc., 2013 Tex. App. LEXIS 7348 (Tex. App. –

Dallas 2013, no pet.) (issues inadequately briefed); Jain v. Cambridge Petroleum

Grp., Inc., 395 S.W.3d 394, 2013 Tex. App. LEXIS 2088 (Tex. App. – Dallas

2013, no pet.) (dismissed for want of jurisdiction);Avila v. Larrea, 394 S.W.3d

646, 662 (Tex. App. – Dallas 2012, pet. Filed) (plaintiff presented no evidence of

falsity); In Re Steven Lipsky, 2015 Tex. LEXIS 350; 58 Tex.Sup. J. 707.

      A. Standard of review of Appellant’s burden under Section 27.005(b).

      Several courts have held that the review of a ruling under Section 27.005(b)

      of the Act is de novo. “We review this determination de novo as an

      application of law facts.” Better Bus. Bureau of Metro Houston v. John

      Moore Services, 2013 Tex. App. LEXIS 8756 *8 (Tex. App. – Houston [1st

      Dist.] 2013, no pet.).See also Newspaper Holdings, Inc. v. Crazy Hotel

      Assisted Living, Ltd., 2013 Tex. App. LEXIS 5407 *16 (Tex. App.—

      Houston [1st Dist.] May 2, 2013, no pet.) (the first step of this inquiry is a

      legal we review de novo.”); Rehak Creative Servs., Inc. v. Witt, 2013 Tex.

      App. LEXIS 6196, at *22-23. The interpretation of Section 27.005(b) is a

      question of law that is reviewed de novo. Better Bus. Bureau of Metro

      Dallas, Inc. v. BH DFW, Inc., 402 S.W.3D 299, 2013 Tex. App. LEXIS

                                                                                 12
6057 at *9. But, the trial court must determine what those facts are in the

first instance, in order for the legal analysis to be made on appeal.

      By its plain language, Section 27.005(b) of the Act requires Appellant

to demonstrate “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 the right of

free speech; the right to petition; or the right of association.” TEX. CIV.

PRAC. & REM. CODE ANN § 27.005(b). The Court’s primary purpose is

to give effect to the Legislature’s intent by relying on the plain meaning of

the text. Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402

S.W.3d 299, 2013 Tex. App. LEXIS 6057 at *9; Tex. Lottery Comm’n v.

First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). The

Legislature tries to say what it means, and therefore the words it chooses

should be the surest guide to legislative intent unless a different meaning is

supplied by statutory definition or is apparent from the context, or the plain

meaning leads to absurd results. Better Bus. Bureau of Metro Dallas, Inc. v.

BH DFW, Inc., 402 S.W.3d 299, 2013 Tex. App. LEXIS 6067 at *9-10.

      Texas law is well-settled that the preponderance of the evidence

standard of review is one of factual sufficiency. In resolving factual disputes,

the trial court may believe one witness and disbelieve others, and it may

resolve any inconsistencies in a witness’s testimony. City of Keller v.
                                                                             13
Wilson, 168 S.W.3d 802, 819 (Tex. 2005); McGalliard v. Kuhlmann, 722

S.W.2d 694, 697 (Tex. 1986); Montgomery Indep. Sch. Dist. V. Davis, 34

S.W.3d 559, 567 (Tex. 2000).

      The trial court, as fact finder, may disregard even uncontracted and

unimpeached testimony from disinterested witnesses. City of Keller v.

Wilson, 168 S.W.3d at 820. With regard to finding the facts by a

preponderance of the evidence (so the law can be applied to the facts

determined), even undisputed testimony from Appellant, as an interested

witness, only raises a fact question for the fact finder to resolve unless the

undisputed testimony is clear, positive, direct, otherwise credible, free from

contradictions   and   inconsistencies,   and   could   have   been   readily

controverted.

B. Standard of Review of Appellee’s Burden Under Section 27.005(c)

If Appellant has met her burden under Section 27.005(b) of the Act, the

focus shifts to Appellees’ burden under Section 27.005(c) of the Act to

“establish by clear and specific evidence a prima facie case for each

essential element of the claims in question.” Rehak Creative does hold that

the trial court’s determination that a party presented prima facie proof of a

meritorious claim is reviewed de novo, but also holds that the review under


                                                                           14
this provision of the statute is “an independent determination applying the

same standard used by the trial court in the first instance.” Rehak Creative,

2013 Tex. App. LEXIS 6196 *22-23. This requires review of the record in

alight favorable to Appellees to determine whether the record contains a

minimum quantum of clear and specific evidence to support a rational

inference that the allegations of fact (as to each essential element if the

claim) were true, disregarding any contrary evidence. Better Bus. Bureau of

Metro Houston v. John Moore Services, 2013 Tex. App. LEXIS 8756 at *14;

Crazy Hotel Assisted Living, Ltd., 2013 Tex. App. LEXIS 5407 *16-17

(“The legislature’s use of the term ‘prima facie case’ in the second step

implies a minimal factual burden: “[a] prima facie case represents the

minimum quantity of evidence necessary to support a rational inference that

the allegation of fact is true.”) (citing Rodriguez v. Printone Color Corp.,

982 S.W.2d 69, 72 (Tex. App. – Houston [1st Dist.] 1998, pet. denied)); In

Re Lipsky, 2013 Tex, App. LEXIS 4975 *12, 32 (Tex. App. – Ft. Worth,

2013, no pet.) (rational inference from plaintiff’s evidence was that a false or

defamatory statement was made with malice); but see Rehak Creative v.

Witt, 2013 Tex. App LEXIS 6196 * 22-23 (clear and specific means without

inferences or intendments).




                                                                             15
      As noted above, the Legislature amended the Act in 2013. One of the

amendments added Section 27.005(d): “Notwithstanding the provisions of

Subsection (c), the court shall dismiss a legal action against the moving

party if the moving party establishes by a preponderance of the evidence

each essential element of a valid defense to the movant’s claim.” In addition,

this change in the statute is clearly unconstitutional and if it were applicable

to this appeal it would be void. It is one thing to conduct an early review to

determine if a plaintiff’s claim is so lacking in the merit that she cannot

present a prima facie case before proceeding to discovery and trial, but it is

altogether different to require a party to defend an action without trial, by

presenting affidavit evidence which is weighed by a fact finder who never

sees a live witness; and such a process deprives the parties of their

constitutional right to trial by jury and to have live testimony where

witnesses are subject to cross examination and confrontation, replacing die

process with a system that decided cases based on which lawyer wrote the

best affidavit. See Neely v. Wilson, 2013 Tex. LEXIS 511, *55-56;

Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974) (“the right to

cross examinations is a vital element in a fair adjudication of disputed

facts[,]” and includes “the right to cross examination adverse witnesses and

to examine and rebut all evidence[.]); Nat’l Family Care Life Ins. Co. v.


                                                                             16
Fletcher, 57 S.W.3d 662, 669-70 (Tex. App. – Beaumont 2001, pet. denied);

Bentley v. Bunton, 94 S.W.3d 516, 587 (Tex. 2002) (“If the evidence is

disputed, falsity must be determined by the finder of fact.”)

       If preponderance of the evidence standard for reviewing Appellees’

evidence were applicable to 27.005(c), the standard of review would be

factual sufficiency – the trial court may believe one witness and disbelieve

others, and it may resolve any inconsistencies in a witness’s testimony. City

of Keller, 168 S.W.3d at 819. The trial court as fact finder may disregard the

interested testimony of Appellant and may reject even uncontradicted and

unimpeached testimony from disinterested witnesses. City of Keller, Id. At

820.

       By definition, prima facie means the amount of proof required to go

to the jury – if the evidence is disputed, the trial is not over in favor of the

defendant; instead the fact finder resolves the dispute. There is no legitimate

basis for assuming that the Legislature intended to allow a defaming

tortfeaser to avoid responsibility and recover attorney fees from the persons

defamed merely by falsely swearing “it’s all true.”

       The Texas Supreme Court has held that the burden of showing a

prima facie case is minimal and not onerous. See Mission Consol. Indep.


                                                                             17
      Sch. Dist. V. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (case involving

      employment discrimination). Accordingly, unless there is no clear and

      specific evidence supporting Appellees’ causes of action, Appellees are

      entitled to discovery and to have their claims submitted to the jury.

            In determining whether there was clear and specific evidence to

      establish plaintiff’s prima facie case and avoid dismissal pursuant to TEX.

      CIV. PRAC. & REM. CODE ANN. § 27.005(c) of the Texas Citizens

      Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN.

      §27.001-27.011, relevant circumstantial evidence could be considered; The

      Supreme Court of Texas accordingly disapproved those cases that

      interpreted the TCPA to require direct evidence of each essential element of

      the underlying claim to avoid dismissal; A gas well driller’s defamation

      counterclaim against a property owner was properly not dismissed because

      clear and specific evidence showed the owner’s statements were defamatory

      per se, as they reflected on the driller’s fitness and abilities as a natural gas

      producer, and proof of particular damage was not required.

II. The Trial Court properly denied Appellant’s motion to dismiss.

      Under Texas law, the privilege to speak freely carries with it the

concomitant responsibility to answer in damages for the abuse of that privilege.


                                                                                    18
TEX. CONST. SRT. I, § 8. Ex parte Tucker, 220 S.W. 75, 76, 110 Tex. 335, 337

(1920).

            The purpose of this provision is to preserve what we call “Liberty of
            speech” and “the freedom of the press,” and at the same time hold all
            persons accountable to the law for the misuse of that liberty or
            freedom. Responsibility for the abuse of the privilege is, as fully
            emphasized by its language, as that the privilege itself shall be free
            from all species of restraint. But the use of the privilege, the provision
            commands, shall be dealt with in no other way. It is not to be
            remedied by denial of the right to speak, but only by appropriate
            penalties for what is wrongfully spoken. Punishment for the abuse of
            the right, not prevention of its exercise, is what the provision
            contemplates. There can be no liberty in the individual to speak,
            without the unhindered right to speak. It cannot co-exist with a power
            to compel his silence or fashion the form of his speech. Responsibility
            for the abuse of the right in its nature pre-diposes freedom in the
            exercise of the right. It is denial of the authority, anywhere, to prevent
            its exercise.



Ex parte Tucker, 220 S.W. at 76 (emphasis added). Knowing false statements are

not afforded constitutional protection. Bentley, 94 S.W.3d at 591.

      Appellee sued to hold Appellant accountable for calling her a prostitute.

Appellant sought to dismiss all of Appellees’ causes of action pursuant to the Act.

The trial court denied the Motion to Dismiss.

      The stated purpose of the Act is to “encourage and safeguard the

constitutional rights of persons to petition, speak freely, associate freely, and

otherwise participate in government,” while also protecting the “rights of a person


                                                                                   19
to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM.

CODE § 27.002. The Act does not lessen any other remedy available under Texas

law (TEX. CIV. PRAC. & REM. CODE § 27.011), and thus is not intended to

permit persons publishing false, harmful, extortionate, and destructive statements

to merely assert the Act and be exonerated of responsibility for their wrongful

conduct. Simply put, the Act does not change or modify Texas law regarding the

well-settled limits of free speech. In a suit for damages based on Appellant’s abuse

of that privilege, the Texas Constitution affords more extensive protection for

Appellees than does the First Amendment of the United States Constitution. Neely

v. Wilson, 56 Tex. Sup. J. 766 *12, 2013 Tex. LEXIS 511 (June 28, 2013); Turner

v. KTRK TV, Inc., 38 S.W.3d 103, 117 (Tex. 2000); see generally Ex parte Tucci,

859 S.W.2d 1, 19-26 (Tex. 1993) (Phillips, C.J., concurring) (discussing history of

Texas free expression clause).

      Each cause of action asserted by Appellee is recognized in Texas law: Star

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74, (Tex. 1995) (invasion of privacy

by publicly disclosing private facts); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.

1989) (defamation); TEX. CIV. PRAC. & REM. CODE § 73.001 (statutory libel);

and Hoffman-La Roche, Inc. v. Zeltwanger, 144S.W.3d 438, 445 (Tex. 2004)

(intentional infliction of emotional distress). Accordingly, the Act cannot be read

to diminish Appellees’ rights to bring a “meritorious lawsuit for demonstrable

                                                                                 20
injury” based on these causes of action. TEX. CIV. PRAC. & REM. CODE §§

27.002, 27.011. Speech which transgresses these limits is tortious and is not

constitutionally protected from claims for damages.

       A. Appellant’s actionable statements did not address matters of public
          concern.
            1.     Appellant has judicially confessed that Appellee is not a matter

            of public concern and is not a public figure. Appellant has been

            disingenuous with the Court in her Appellate Brief and has attempted

            to move her position. Please see Direct Examination of Mariann

            Bacharach below.

            CV Supp Rpt Rec Volume 1 OF Volume 1, Page 3, Lines 8-14

      MRS. BACHARACH: My name is Mariann Bacharach and I am here to

      request a Motion to Dismiss on the Citizens Participation Act. I filed – I

      posted numerous posts about Rogelio Garcia. The post here in question that

      we’re talking about was on Liars and Cheaters. I posted some things about

      Mr. Garcia and also said his mother was a prostitute…

      CV Supp Rpt Rec Volume 1 OF Volume 1, Page 4, Lines 23-24

      THE COURT: This is not about Rogelio Garcia. This is about Eufemia

      Garcia.

      CV Supp Rpt Rec Volume 1 OF Volume 1, Page 5, Lines 10-13
                                                                                 21
THE COURT: Did you indicate to me that you did post and you’re under

oath saying that Rogelio Garcia’s mother was a prostitute?

MRS. BACHARACH: Yes, Your Honor.

CV Supp Rpt Rec Volume 1 OF Volume 1, Page 5, Lines 24-25 & Page 6,

Lines 1-5

THE COURT: Stick to what you’re here for now. You’re here on

statements that were made and that you wanted to dismiss, so stick to what

you’re here for. Stop. I am now cutting you off about any other family

members. We’re here about specific statements you made and how you

believe that it should be dismissed under the statute.

CV Supp Rpt Rec Volume 1 OF Volume 1, Page 7, Lines 18-25 & Page 8,

Lines 1-2, 4-10

THE COURT: The defense can assert the defense of truth. That means the

statement, if it’s true, you’re covered. Thinking it’s true doesn’t make it so.

You’re going to have to prove that she was a prostitute. That’s what it is.

And by the way, you’re here on a very specific statute that does deal with a

public concern or public figure and you haven’t even gotten to that. I think

we’d agree that Mrs. Garcia is not a public figure, right?

Mrs. Bacharach: Yes, I agree….
                                                                            22
THE COURT: Guess what? Posting something about somebody’s mother

and they – people can interpret who that mother is. You cannot then say it

wasn’t about her. You did actually, now have said on the stand, under oath,

that you posted something about Rogelio Garcia’s mother. Did you not?

MRS. BACHARACH: Yes, I did, Your Honor.

CV Supp Rpt Rec Volume 1 OF Volume 1, Page 9, Lines 14-25 & Page 10,

Line 1

THE COURT: We’re not here about Mr. Garcia. We’re not here about the

lawsuit in Harris County. We’re not here about any possible lawsuit that

Chris Carmona has against you. We are here about specific statements that

you believe fall under this statute. You seem to have a misconception that

you can’t be sued anywhere else by anybody else because there’s some

injunction in Harris County. With all due respect, ma’am, you’re here about

your own actions of which you’ve actually testified to that you did and why

does that fall under this statute. You’ve testified that you can agree that Mrs.

Garcia is not a public figure. And her personal life is not a public concern, is

it?

CV Supp Rpt Rec Volume 1 OF Volume 1, Page 10, lines 2-3

MRS. BACHARACH: No, it is not.

                                                                             23
      THE COURT: Okay, Go ahead. I’m listening.

      CV Supp Rpt Rec Volume 1 OF Volume 1, Page 12, Lines 14-16

      THE COURT: You don’t get it. Wow. This is not about Rogelio Garcia and

      you’re assuming that she – the woman testified that she was not a

      prostitute…

      For arguments sake a matter is not a “matter of public concern” merely

because third parties might be interested in gossip, or because there is public

debate concerning similar issues that do not directly implicate the plaintiffs.

                 An individual, and more pertinently perhaps the community, is
                 most offended by the publication of intimate personal facts when
                 the community has no interest in them beyond the voyeuristic
                 thrill of penetrating the wall of privacy that surrounds a stranger.
      Appellant published on a post “Liars and Cheaters” detailed defamatory

statements and has attempted to compound the problem by steering people to the

post by establishing a website called “www.ThugLaw.LexNevi.com.” Appellant

presented no evidence that there was any public discussion of controversy about

Appellee’s life, Klentzman, 312 S.W.3d at 906.

      Nor can Appellant create a controversy about her statements merely by

publishing them. See Id. At 905. Appellant has failed to demonstrate a right to

association with anyone to discuss the private of Appellant, an 86 year old woman.



                                                                                  24
Her false incomplete and incompetent attachments do not relate to the private life

of Appellant.

       2. The Act should not properly be interpreted to apply to all
          communications which might remotely touch on a topic of public
          debate, else the express legislative intention to protect every
          person’s constitutional right to bring meritorious lawsuits for
          demonstrable injury is nullified.

      The Act 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 § 27.001(3). And a matter public concern under TEX.

CIV. PRAC. & REM. CODE § 27.001

(7) “Matter of public concern” includes an issue related to:
      B) Health or safety;
      C) Environmental, economic, or community well-being;
      D) The government;
      E) A public official or public figure;
      F) or a food, product, or service in the marketplace.
(8) “Official proceeding” means any type of administrative, executive, legislative,
    or judicial proceeding that may be conducted before a public servant.
(9) “Public servant” means a person elected, selected, appointed, employed, or
     otherwise designated as one of the following, even if the person has not yet
     qualified for office or assumed the person’s duties:
      a) An officer, employee, or agent of government;
      b) A juror;
      c) An arbitrator, referee, or other person who is authorized by law or private
         written agreement to hear or determine a cause or controversy;
      d) An attorney or notary public when participating in the performance of a
         governmental function; or
      e) A person who is performing a governmental function under a claim of
         right but is not legally qualified to do so.


                                                                                 25
      Appellant argues that the Act should be liberally construed to protect her

right to speak freely. Yet, the same Act requires that it be construed just as

“liberally to effectuate its purpose and intent fully” to protect the constitutional

rights and remedies of Appellee to bring meritorious actions for demonstrable

injuries. TEX. CIV. PRAC. & REM. CODE § 27.011(a) and (b).

      Under Appellant’s interpretation of the statute, so long as any defamatory

statement she makes as a private person about another private person is topically

related to any “matter of public concern” listed in Section 27.001(7) (even if there

is no public debate, or mention of the people, incidents, or events she claims to

relate), that defamatory statement comes under the Act’s definition of a matter of

public concern. This is not the law in Texas, and the Act expressly requires that it

be interpreted liberally to effectuate its purpose and intent fully, meaning it cannot

abrogate or lessen any constitutional remedy afforded Appellees, including the

right of redress for reputational torts. TEX. CIV. PRAC. & REM. CODE § 27.011.

      The list of matters of public concern in Section 27.001(7) (health or safety;

environmental, economic, or community well-being; the government; a public

official or public figure; or a good, product, or service in the marketplace) must be

read to identify possible matters of public concern which include the listed topics.

To interpret the Act to hold that it requires that any private communication which



                                                                                   26
relates to any of these topics, to any degree, is a “matter of public concern” makes

the list meaningless.

   3. Appellees established by clear and specific evidence a prima facie case
      for each essential element of each cause of action.

      Assuming Appellant met her initial burden under Section 27.005(b) of the

      Act, the trial court properly found that Appellee presented clear and specific

      evidence, sufficient to make a prima facie showing, on each element of her

      causes of action which were not dismissed. Appellee presented not only her

      testimony, affidavit (CR 237), and her petition (CR 220), but also organized

      the evidence of phone calls to Appellee’s family member and legal counsel

      to show how each elements of a cause of action was proven (CR 239-250).

   4. Clear and specific evidence established a prima facie case for each
      element of the common law defamation cause of action and the statutory
      libel cause of action.

      A Plaintiff pursing a cause of action for common law defamation must

establish that the defendant published or republished a statement of fact. WFAA-

TC. Inc, 978 S.W.2d at 571. The statement must be sufficiently factual to be

susceptible of being proved objectively true or false, as contrasted with a purely

subjective assertion. Thomas-Smith v. Mackin, S.W.3d 503, 509 (Tex. App. –

Houston [14th Dist.] 2007, no pet.). The statement must be communicated in such a

way that a third person is capable of understanding and did understand its


                                                                                  27
defamatory meaning. Id. A false statement of opinion is actionable, if the opinion

is known to be false by the speaker, and the speaker has special knowledge of past

or present facts that the other party does not. Italian Cowboy Partners, Ltd. v.

Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011); Transport Ins. Co. v.

Faircloth, 898 S.W.2d 269, 276 (Tex. 1995); O’Brien v. Daboval, 388 S.W.3d

826, 840 (Tex. App. – Houston [1st Dist.] 2012, no pet.). See Milkovich v. Lorain

Journal Co., 497 U.S. 1, 19 (1990) (speaker who says “In my opinion, Jones is a

liar” implies knowledge of facts that lead to the conclusion stated); Bentley v.

Bunton, 94 S.W.3d at 579. Even if Appellant states the facts upon which she bases

an actual opinion, if those facts are either incorrect or incomplete, or if her

assessment of them is erroneous, the opinion may still imply a false assertion of

fact. Id.

       Section 73.001 of the Texas Civil Practice and Remedies Code sets out the

elements of statutory libel. “A libel is a defamation expressed in written or other

graphic form…that tends to injure a living person’s reputation and thereby expose

the person to public hatred, contempt or ridicule or financial injury or to impeach

any person’s honesty, integrity, virtue, or reputation or to publish the natural

defects of anyone and thereby expose the person to public hatred, ridicule, or

financial injury.” TEX. CIV. PRAC. & REM. CODE § 73.001.



                                                                                 28
      Appellant is not a media defendant, thus the rule of Gertz v. Robert Welch,

Inc., 418 U.S. 323, 347, 94. S. Ct. 2997, 41 L. Ed. 2d 789 (1974), requiring fault in

a defamation action by an individual against a publisher or broadcaster for a

defamatory statement, is not applicable. Peshak v. Greer, 13 S.W.3d 421, 425-26

(Tex. App – Corpus Christi 2000, no pet.). “Proof of the publication of the false

injurious statement is sufficient without any necessity of showing a particular

mental state, for one is assumed to intend to make the statement that issues from

his mouth or pen.” Id. At 426. Nor must Appellees prove that the defamatory

statements are false as part of their prima facie case. See Philadelphia Newspapers,

Inc. v. Hepps, 475, U.S. 767, 776-77, 106 S. Ct. 1558, 1564, 89 L. Ed. 2d 783

(1986) (holding common-law presumption that defamatory speech is false cannot

stand when plaintiff sues media defendant for speech of public concern); Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-61, 105 S. Ct.

2939, 2945-46, 86 L. Ed. 2d 593 (1985) (allowing common-law presumption of

falsity to exist for private issues involving private non-media parties). To maintain

a defamation cause of action, the plaintiff must prove that the media defendant (1)

published a false statement; (2) that was defamatory concerning the plaintiff; (3)

while acting with either actual malice, if the plaintiff was a public official or public

figure, or negligence, if the plaintiff was a private individual, regarding the truth of

the statement. Hearst Corp. v. Skeen, 159 S.W.3d 633, 636-37 (Tex. 2005) (per


                                                                                     29
curiam); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). For a statement to be

actionable in defamation, it must expressly or impliedly assert facts that are

objectively verifiable. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S. Ct.

2695, 2706, 111 L. Ed.2d 1, 18 (1990). Whether a publication is an actionable

statement of fact is a question of law and depends on its verifiability and the

context in which it was made. See Bentley v. Bunton, 94 S.W.3d 561, 583-87 (Tex.

2002).

   5. Clear and specific evidence established a prima facie case for each
      element of defamation per se.


   Appellant’s statements are defamatory per se when they are so obviously

hurtful to the person aggrieved that no proof of their injurious character is required

to make them actionable. Hancock, 400 S.W.3d at 64 (character of the defamatory

words and the circumstances of publication make it all but certain that serious

harm has resulted in fact) (citing Dun & Bradstreet, Inc. 472 U.S. at 760). False

statements that charge the commission of a crime or impute sexual misconduct

meet this requirement, as do injury to a person’s office, business, profession, or

calling. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814 (Tex. 1969);

Marshall v. Mahaffey, 974 S.W.2d 942, 950 (Tex. App. – Houston [14th Dist.]

2011, no pet.). “[A]n allegedly defamatory publication should be construed as a

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

                                                                                   30
ordinary intelligence would perceive it.” Turner v. KTRK TV, Inc., 38 S.W.3d 103,

114 (Tex. 2000). This is an objective test. New Times, Inc. v. Isaacks, 146 S.W.3d

144, 157 (Tex. 2004).

      When the statement is defamatory per se, the law presumes the existence of

some actual damages, requiring no independent proof of general damages. See

Shearson Leham Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex. App – Corpus

Christi 1991, writ dism’d w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477,

488 (Tex. App – Corpus Christi 1989, writ denied); City of Brownsville v. Pena,

716 S.W.2d 677, 682 (Tex. App – Corpus Christi 1986, no writ); First State Bank

v. Ake, 6056 S.W.2d 696, 702 (Tex. App – Corpus Christi 1980, writ ref’d n.r.e.).

The jury is given wide discretion in its estimation of the amount of damages. West

Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex. Civ. App – Austin 1942,

no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex. Civ. App – Dallas 1919, writ

dism’d). Compensatory damages allowable for defamation include general

damages such as mental anguish, injury to reputation and the like that naturally

flow from the libel and are not easily susceptible to monetary valuation. Id.

      While not required to prove that the defamatory statements were false, or

were made with malice, Appellees presented clear and specific evidence of these

elements as well. Appellees clearly and specifically stated that the accusations

were false, were fabricated, and were lies.
                                                                                31
      That post expressly names each Appellee is of no consequence if the

statement indirectly refers to Appellees. See Cox Tex. Newspapers, L.P. v. Penick,

219 S.W.3d 425, 433 (Tex. App – Austin 2007, pet. denied). It is not necessary

that every reader understands who Appellant is defaming, so long as there are

some who reasonably do. Davis v. Davis, 734 S.W.2d 707, 711 (Tex. App –

Houston [1st Dist.] 1987, writ ref’d n.r.e.).

      Appellee testified that she is deeply embarrassed and suffering distress,

causing her physical and mental wellbeing to decline. (Appellee’s Affidavit CR

Page 237-38). Appellee testified that Appellant’s statements have frightened her

and exacerbated her medical conditions; she is emotionally distressed, she

experiences bouts of anxiety. She suffers from despair and public humiliation.

      The evidence is clear, specific, and more than sufficient to make a prima

facie case. See Hancock v. Variyam, 400 S.W.3d at 69 (sufficient evidence of

mental anguish where plaintiff experienced embarrassment in the community

where he spent almost all of his life, distress, lost sleep, depression, a major change

in demeanor, and would never be the same and his family was disrupted, his

children were distressed at school and everywhere he went people would stop and

say they heard he had been called corrupt, even though most of these people were

well- meaning). Appellant’s argument that medical care was not sought does not

diminish the fact that a prima facie case was made. Miranda v. Byles, 390 S.W.3d
                                                                                    32
at 556 (evidence that plaintiff had not sought counseling or medication does not

prove he did not suffer mental anguish, it only means he did not seek counseling or

medication as a result).

   6. Clear and specific evidence established a prima facie case for each
      element of intentional infliction of emotional distress cause of action.


      To recover damages for intentional infliction of emotional distress, a

plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2)

the defendant’s conduct was extreme and outrageous; (3) the defendant’s action

caused the plaintiff emotional distress; and (4) the resulting emotional distress was

severe. Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).

Extreme and outrageous conduct is conduct so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community. Id. Intent

can be inferred either from the circumstances and Appellant’s conduct as well as

from Appellant’s overt expressions. Toles v. Toles, 45 S.W.3d 252, 260 (Tex.

App.-Dallas 2001, pet. Denied); Twyman v. Twyman, 855 S.W.2d 619, 623 (Tex.

1993).

      Appellant’s false statements that Appellee was a prostitute go far beyond the

bounds of decency and are atrocious and utterly intolerable in a civilized

community.
                                                                                    33
   7. Clear and specific evidence established a prima facie case for each
      element of the invasion of privacy cause of action.

      The elements of the tort of invasion of privacy are (1) publicity given to

matters concerning one’s personal life; (2) the publication of which would be

highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter

publicized is not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 473-74 (Tex. 1995) (citing Industrial Found. Of the South v. Texas

Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976), cert. denied, 430 U.S. 931,

51 L.Ed.2d 774, 97 S. Ct. 1550 (1977)).

      The rule stated in this Section applies only to publicity given to matters

concerning the private, as distinguished from the public, life of an individual.

…Every individual has some phases of his life and his activities and some facts

about himself that he does not expose to the public eye, but keeps entirely to

himself or at most reveals only to his family or to close personal friends. Sexual

relations, for example, are normally entirely private matters, as are family

quarrels, …most details of a man’s life in his home…

      RESTATEMENT 2ND TORTS, § 652D, cmt.; see also Diamond Shamrock

Refining & Mktg. Co. v. Mendez, 844 S.W.2d 198, 203 (Tex. 1992) (Hightower, J.,

concurring) (recognizing that the right of individual privacy is implicit among the

general, great, and essential principles of liberty).


                                                                                  34
      Reviewing the record in alight favorable to Appellees establishes the

minimum quantum of clear and specific evidence to support a rational inference

that the allegations of fact as to each essential element of the claim are true, if no

contrary evidence is offered. Better Business Bureau of Metro Houston, 2013 Tex.

App. LEXIS 8756 *14; Crazy Hotel Assisted Living, Ltd., 2013 Tex, App. LEXIS

5407 *16-17.

                                   CONCLUSION

Texas Citizen Participation Act does not insulate Appellant from responsibility

from her speech and conduct in this case. Knowingly making false statements of

face to injure another is not a constitutionality protected speech. Appellee’s claims

are merit and they should be allowed to proceed to trial.

                                      PRAYER

Appellee respectfully prays that the Court (1) deny all relief sought by appellant in

her brief, (2) affirm the denial of Appellant’s Motion to Dismiss in all respects, and

(3) grant all other appropriate relief to Appellee.




                                                                                   35
Respectfully submitted,

By: /s/Chris Carmona
Chris Carmona
Attorney at Law
SBN: 24072022
Law Office of Chris Carmona
PO Box 7137
Houston, TX 77248
832-444-4293 ph
832-460-2724 fax
Email:
chris@carmonalawoffice.com




                              36
                     CERTIFICATE OF COMPLIANCE
PURSUANT TO T.R.A.P.9.4(I)(3), I CERTIFY THAT THE NUMBER OF WORDS IN
THIS BRIEF OF APPELLEE, EXCLUDING CONTENT PURSUANT TO
T.R.A.P.9.4(I)(1), REPORTED STATED IN THE COMPUTER PROGRAM USED TO
PREPARE THE DOCUMENT, IS 8,119.




                                      /s/Chris Carmona
                                      CHRISTOPHER CARMONA




                       CERTIFICATE OF SERVICE


I CERTIFY THAT THE FOREGOING BRIEF OF APPELLEE WAS
ELECTRONICALLY FILED WITH THE CLERK OF THE COURT USING THE
ELECTRONIC CASE FILING SYSTEM OF THE COURT. I ALSO CERTIFY THAT A
TRUE AND CORRECT COPY OF THE FOREGOING WAS SERVED BY CERTIFIED
MAIL WITH RETURN RECEIPT ON APPELLANT.


                                     /s/Chris Carmona
                                      CHRISTOPHER CARMONA


Mariann Bacharach
PO Box 8217
Houston, TX 77288

CMR No.: 7014 0510 0000 2482 1098




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                  APPENDIX


TRIAL COURT JUDGMENT…………………………………………………..39




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