                           NUMBER 13-13-00525-CV

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


JUAN ANTONIO CORONADO, FRANCISCO
SOLIZ RAMIREZ, ROBERTO RIVERA III,
AND RUBEN CONTRERAS,                                                    Appellants,

                                         v.

FREEDOM COMMUNICATIONS,
INC. D/B/A THE BROWNSVILLE HERALD
AND VALLEY MORNING STAR,                                                  Appellee.


                  On appeal from the 357th District Court
                       of Cameron County, Texas.


                           MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Benavides and Perkes
           Memorandum Opinion by Chief Justice Valdez

      Appellants, Juan Antonio Coronado, Francisco Solis Ramirez, Roberto Rivera III,

and Ruben Contreras, appeal the trial court’s grant of traditional summary judgment in

favor of appellee, Freedom Communications, Inc. d/b/a The Brownsville Herald and
Valley Morning Star.       By three issues, appellants contend that trial court erred in

concluding that no genuine issue of material fact exists regarding Freedom’s claim of fair

privilege, truth defense, and whether an allegedly defamatory advertisement addressed

a legitimate public concern. We affirm.

                                    I.    BACKGROUND

       In a previous opinion that the Texas Supreme Court vacated, we set out the facts

of this case as follows:

       This case concerns a full-page newspaper advertisement taken out by the
       campaign of Peter Zavaletta, a candidate for District Attorney of Cameron
       County, Texas, in 2008. Different versions of the advertisement appeared
       in two newspapers published by Freedom—the Brownsville Herald and the
       Valley Morning Star—on the days leading up to the Texas Democratic
       primary election on March 4, 2008.

       The advertisement, first printed on February 26, 2008 in both the Herald
       and the Morning Star, was prepared by an advertising agency hired by
       Zavaletta, and was intended to criticize the record of the incumbent District
       Attorney, Armando Villalobos. The advertisement stated in large type on
       the top of the page that “‘ARMANDO VILLALOBOS IS AGAINST OUR
       CHILDREN’” (emphasis in original). The left half of the page contained a
       chart entitled “Cases Involving Children (2007)” which consisted of five
       columns and 103 rows of data purportedly detailing the disposition of child-
       related cases by the Cameron County District Attorney's office in 2007.

Freedom Commc’ns, Inc. v. Coronado, 296 S.W.3d 790, 793 (Tex. App.—Corpus Christi

2009), vacated by Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex.

2012). The chart included entries concerning allegations of child abuse made against

each appellant and included the agency and its disposition of the case. Id. In each case,

the chart indicated that the dispositions regarding each appellant were “declined at

intake.” Id.

       The right half of the advertisement contained, in part, the following text:




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      The District Attorney must always protect those who are unable to protect
      themselves, and always stand up for the weak, the defenseless, and for
      those with no voice.

      As these records from 2007 only establish, Armando Villalobos has
      invariably stood against children who have been sexually abused, sexually
      assaulted, or physically injured, and stood with those who would commit
      such heinous crimes.

      Armando Villalobos’ record proves he is morally unfit for public office.

      ....

      As your District Attorney, my team and I will aggressively prosecute these
      cases and insist that the convicted be incarcerated.

             A second version of the advertisement ran in the Herald on February
      29, 2008. This version included only the initials of those individuals listed
      in the chart . . . whose cases were declined at intake by the District
      Attorney’s office.

Id. at 794. The chart indicated that out of 103 cases where allegations of child abuse

were made, Villalobos declined at intake to prosecute seventy-seven of those cases. Id.

             Below the summary table was a sentence further distilling the
      information provided in the chart to its essence: “In 103 cases involving
      crimes against children, Armando Villalobos couldn’t even send one
      defendant to prison!” (Emphasis in original.) This version of the
      advertisement ran again in the newspapers on March 2, 3, and 4.

              On March 18, 2008, Coronado and Ramirez filed suit against
      Freedom, Zavaletta, and Yolanda De Leon, a board member of the
      Cameron County Children's Advocacy Center (“CCCAC”), asserting causes
      of action for invasion of privacy by disclosure, and defamation. An amended
      petition was later filed on September 23, 2008, adding Rivera and Contreras
      as plaintiffs and requesting exemplary damages. The petitions specifically
      alleged that the advertisements contained false and defamatory statements
      of fact . . . [and] that the defendants acted negligently and maliciously. . . .

              Freedom filed a motion for traditional summary judgment on April 11,
      2008, arguing that it [was] entitled to judgment as a matter of law on all of
      the . . . claims. . . . On November 26, 2008, after a hearing, the trial court
      denied Freedom’s motion for traditional summary judgment.                  An
      accelerated interlocutory appeal followed.



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Id. at 794–95.

       After addressing the merits of Freedom’s appellate arguments, this Court affirmed

the trial court’s denial of Freedom’s motion for summary judgment.            Id. at 802. In

Coronado, 372 S.W.3d at 624, Freedom appealed our decision to the Texas Supreme

Court, which stated the following:

       Freedom filed a petition for review in this Court and as part of its briefing
       provided a copy of a plea agreement filed in the United States District Court
       for the Southern District of Texas. The agreement shows that after the court
       of appeals issued its decision, [Abel] Limas [the judge who denied
       Freedom’s motion for summary judgment] pleaded guilty to federal
       racketeering charges. He admitted in the plea that on May 8, 2008, he
       accepted $8,000 in cash for, in part, making rulings favorable to the plaintiffs
       in this case, including “denying [Freedom's] Summary Judgment [motion]
       on November 26th.”

Id. at 623.

       The Texas Supreme Court determined that “[t]he facts in the plea agreement

show[ed] that Limas had an interest—an illegal interest, no less—in this case because he

obtained a pecuniary gain as a direct result of his rulings, including his order denying

Freedom’s summary-judgment motion” and that Limas was therefore “disqualified and his

discretionary ruling on the summary-judgment motion was void.” Id. at 624. The court

held that because Limas’s order was void, it and this Court had no jurisdiction over the

cause. Id. The supreme court vacated our judgment and opinion and sent the cause

back to the trial court. Id.

       Upon remand to the trial court, Freedom filed a Renewed Motion for Summary

Judgment that the trial court denied. However, the trial court granted Freedom’s Second

Renewed Motion for Summary Judgment. This appeal followed.




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                               II.      STANDARD OF REVIEW

       We review the granting of a traditional motion for summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100

S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.). “[W]e take as true all

evidence favorable to the non[-]movant, and we indulge every reasonable inference and

resolve any doubts in the non[-]movant's favor.” Valence Operating Co., 164 S.W.3d at

661.

       In a traditional motion for summary judgment, the movant has the burden to

establish that no genuine issue of material fact exists and that he is entitled to judgment

as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing

TEX. R. CIV. P. 166a(c)); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). A defendant seeking a traditional motion for summary judgment must

either disprove at least one element of each of the plaintiff’s causes of action or plead

and conclusively establish each essential element of any affirmative defense. Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Sanchez v. Matagorda County,

124 S.W.3d 350, 352 (Tex. App.—Corpus Christi 2003, no pet.).

                                     III.   DEFAMATION

       Statements that would be perceived by the audience as “rhetorical hyperbole” do

not constitute defamation. American Broad. Cos. v. Gill, 6 S.W.3d 19, 43 (Tex. App.—

San Antonio 1999, pet. denied). A statement must constitute or contain an assertion of

an “objectifiably verifiable” fact in order to constitute actionable defamation. Id. (citing

Burch v. Coca–Cola Co., 119 F.3d 305, 325 (5th Cir.1997). Rhetorical hyperbole is not



                                             5
subject to objective verification; therefore, it is not provable as false and not actionable in

a case against a media defendant. Id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1,

19–20 (1990)).

       Whether a statement is rhetorical hyperbole, opinion, or an actionable assertion of

fact is a question of law for the court. Id. at 30. “Rhetorical hyperbole” is “extravagant

exaggeration” “employed for rhetorical effect.” Id.

       In its motion for summary judgment, Freedom argued that the political

advertisements at issue constituted “rhetorical hyperbole” and opinion.           On appeal,

appellants do not address Freedom’s summary judgment argument regarding rhetorical

hyperbole and opinion. Therefore, the trial court’s implied finding that the complained-of

political ads constituted rhetorical hyperbole is not challenged on appeal. And, because

rhetorical hyperbole is not subject to objective verification, provable as false, and

actionable in a case against a media defendant, we must affirm the trial court’s summary

judgment regarding defamation on that basis. See Jarvis v. Rocanville Corp., 298 S.W.3d

305, 313 (Tex. App.—Dallas 2009, pet. denied) (“If an appellant does not challenge each

possible ground on which summary judgment could have been granted, we must uphold

the summary judgment on the unchallenged ground.”) (citing Adams v. First Nat’l Bank of

Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.—Dallas 2005, no pet.) (“[A] reviewing court

will affirm the summary judgment as to a particular claim if an appellant does not present

argument challenging all grounds on which the summary judgment could have been

granted.”)).

       We need not address appellants’ first and second issues challenging other

grounds for granting summary judgment as they are not dispositive because we have



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concluded that one of the grounds for summary judgment supports the trial court’s ruling.1

See TEX. R. APP. P. 47.1.

                                    IV.     INVASION OF PRIVACY

        By their third issue, appellants contend that the report in the advertisements setting

out the allegations against them “did not disclose any underlying facts that would support

an allegation of criminal activity against [them] because there are none.” Especially given

that the report states that there is “insufficient evidence of criminal activity.” Appellants

argue that the “public has no legitimate interest in the mere fact that an individual has

been accused of a crime” and that “Freedom can bring this Court no facts of any criminal

activity, which would satisfy the fact issue in granting a ‘public interest’ in this information.”

        When making an invasion of privacy claim, a plaintiff must prove the following: (1)

publicity was given to matters concerning the plaintiff’s private life; (2) publication of such

facts would be highly offensive to a reasonable person of ordinary sensibilities; and (3)

matters publicized are not of legitimate public concern.                 Crumrine v. Harte-Hanks

Television, Inc., 37 S.W.3d 124, 127 (Tex. App.—San Antonio 2001, pet. denied). “The

determination whether a given matter is one of legitimate public concern must be made

in the factual context of each particular case, considering the nature of the information

and the public’s legitimate interest in its disclosure.” Star–Telegram, Inc. v. Doe, 915

S.W.2d 471, 474–75 (Tex. 1995). “Whether a publication involves a matter of public

concern is a question of law” that appellate courts review de novo. Klentzman v. Brady,

456 S.W.3d 239, 257 (Tex. App.—Houston [1st Dist.] 2014, pet. filed). “[S]peech on



        1 We note that in our previous opinion, Freedom had not argued that the political ads constituted

rhetorical hyperbole, and we did not address that issue.


                                                   7
‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’” Id.

(citing Snyder, 131 S.Ct. at 1215 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749, 758–59 (1985) (plurality op.))). “Because ‘speech concerning public

affairs . . . is the essence of self-government,’ the First Amendment protects such speech

on the principle that ‘debate on public issues should be uninhibited, robust, and wide-

open.’” Id. “Speech deals with matters of public concern when it can ‘be fairly considered

as relating to any matter of political, social, or other concern to the community’” or when

it “is a subject of legitimate news interest; that is, a subject of general interest and of value

and concern to the public.” Id. at 258.

       Moreover, “the activities of government officials and law enforcement personnel

are matters of public concern.” Id. (citing Philadelphia Newspapers, Inc. v. Hepps, 475

U.S. 767, 769, 776 (1986) (providing that the media defendant’s assertions that a private

businessman influenced the governmental processes through his links to organized crime

constituted an issue of public concern)).

       Here, Freedom provided evidence that the Cameron County District Attorney had

apparently reduced its efforts to prosecute certain crimes listed in the reports. Freedom

argued that the reports included in the ads were a legitimate public concern because

public inquiry into prosecutorial discretion and public debate of the issue of public

corruption is important in a democracy.2 On appeal, appellants have not challenged the

trial court’s grant of Freedom’s summary judgment on the basis that the advertisements

addressed prosecutorial discretion and the acts of public officials. See Jarvis, 298 S.W.3d

at 31. Moreover, because speech about prosecutorial discretion and dealing with matters


       2   In our previous opinion, Freedom did not make such an argument, and we did not address it.


                                                    8
of political issues constitute a public concern, the trial court did not err in granting

Freedom’s motion for summary judgment.3 See Klentzman, 456 S.W.3d at 257–58. We

overrule appellants’ third issue.

                                          IV.     CONCLUSION

        We affirm the trial court’s judgment.

                                                          /s/ Rogelio Valdez_
                                                          ROGELIO VALDEZ
                                                          Chief Justice

Delivered and filed the
30th day of September, 2015.




        3We note that regarding who has the burden to prove truth or falsity when the matter is of a public
concern in a defamation suit, the United States Supreme Court stated the following:

                  To ensure that true speech on matters of public concern is not deterred, we hold
        that the common-law presumption that defamatory speech is false cannot stand when a
        plaintiff seeks damages against a media defendant for speech of public concern.

                ....

                  Because such a “chilling” effect would be antithetical to the First Amendment’s
        protection of true speech on matters of public concern, we believe that a private-figure
        plaintiff must bear the burden of showing that the speech at issue is false before recovering
        damages for defamation from a media defendant. To do otherwise could “only result in a
        deterrence of speech which the Constitution makes free.”

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 769, 776–77 (1986).


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