                                                                                                             ACCEPTED
                                                                                                        13-13-00702-CV
                                                                                        THIRTEENTH COURT OF APPEALS
        FILED                                                                                  CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                     11/20/2015 12:29:30 PM
        CORPUS CHRISTI                                                                                 Dorian E. Ramirez
                                                                                                                  CLERK
         11/20/15
DORIAN E. RAMIREZ, CLERK                CAUSE NO. 13-13-00702-CV
BY DTELLO
             ENTRAVISION COMMUNICATIONS §                                 IN THE THIRTEENTH
                                                                            RECEIVED IN
             CORPORATION, ET AL.        §                             13th COURT OF APPEALS
                                        §                          CORPUS CHRISTI/EDINBURG, TEXAS
             VS.                        §                             11/20/2015
                                                                          COURT  12:29:30 PM
                                                                                     OF APPEALS
                                        §                               DORIAN E. RAMIREZ
                                                                               Clerk
             JESUS EVERADO VILLARREAL   §
             SALINAS                    §                      CORPUS CHRISTI – EDINBURG

                                APPELLEE’S MOTION FOR REHEARING

                     Appellee, Jesus Everado Villarreal Salinas, submits this motion for rehearing

             in response to the opinion issued by the Court on September 30, 2015, and requests

             that the Court consider the following issue:

                     The Court erred in finding that Appellants carried their initial burden
                     of showing by a preponderance of the evidence that the legal action is
                     based on, relates to, or is in response to the parties’ exercise of the
                     right of free speech.

                                                  Argument

                     This appeal concerns the denial of a motion to dismiss filed pursuant to the

             Texas Citizens Participation Act (“the Act” or “the TCPA”). Under the Act,

             Appellants bore the initial burden of showing by a preponderance of the evidence

             that Appellee’s suit is based on, relates to, or is in response to Appellants’ exercise

             of (1) the right of free speech; (2) the right to petition; or (3) the right of

             association. TEX. CIV. PRAC. & REM. CODE § 27.005(b). In determining whether a

             legal action should be dismissed under the Act, a court is to “consider the




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pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” Id. § 27.006(a).

      It is undisputed that Appellants attached no evidence to their motion to

dismiss and that they did not ask the Court to take judicial notice of any specific

evidence in the record for the purpose of assessing whether the Act applied. The

Court’s opinion never acknowledges this point because the Court ultimately finds

that Appellants established, by a preponderance of the evidence, the Act’s

applicability to Appellee’s suit based on the pleadings alone, stating:

              Considering the petition and the answer in this case, we
      conclude that Entravision made the communication at issue, as set out
      in the pleadings, in connection with a matter of public concern—
      specifically that it implicated concerns of community well-being or
      that it involved issues related to a public official or public figure.

OPINION at 9 (citations omitted). As shown below, the analysis the Court employs

to arrive at this conclusion is highly problematic.

      In its analysis, the Court states the following regarding Appellants’ answer:

“Entravision’s answer also set out, among other things, that the statement at issue

involved public officials or public figures. It described the statement as a comment

on a matter of public concern.” OPINION at 8-9 (emphasis added). The Court is

using the term “describe” rather loosely because Appellants’ answer does not set

forth any factual details relating to the publication at issue. Instead, the answer

simply sets forth affirmative defenses for which Appellants state, in a conclusory



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manner, that (1) the subject publication relates to a matter of public concern; (2)

the “Plaintiffs are public officials or public figures”; and (3) the Act applies to the

subject publication. CR:41-43 (specifically ¶ 9, 10, 13, 21). The answer sets forth

no facts, however, through which one can actually assess (1) whether the subject

publication relates to a matter of public concern; (2) whether Plaintiffs are public

officials or figures; or (3) whether the Act applies to the subject publication. That

said, if the Court relied on the answer to conclude that the Act applied (as stated in

its opinion), then the Court is effectively endorsing the belief that a defendant can

establish the Act’s applicability by simply stating that it is applicable in its

answer—even if that answer contains no facts through which a court can verify the

veracity of any such statements. Such a belief, however, is clearly contrary to the

Legislature’s decision to impose a “preponderance of the evidence” evidentiary

burden on a defendant. If the Legislature thought the Act’s applicability could be

established by simply having a defendant allege as much in an answer, then the

Legislature would have surely drafted the Act to that effect and would have never

imposed any “preponderance of the evidence” requirement on defendants.

Accordingly, despite what is stated in the Court’s opinion, the truth of the matter is

that Appellants’ answer—as drafted—can lend no support to a determination that

the Act applies to Appellee’s suit. The only item that can conceivably lend any

support to such a determination is Appellee’s petition alone.



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      In its opinion, the Court expresses the view that the petition and answer—

when taken together—warrant a determination that the Act applies. The reality,

however, is that considering the petition and answer together actually undercuts the

Court’s and the trial court’s ability to make that determination. The Court’s

opinion ignores the fact that Appellants’ answer contained a general denial, stating:

“Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally

deny each and every allegation contained in Plaintiffs’ First Amended Original

Petition and demand strict proof thereof.” CR:35-36. The opinion also ignores the

fact that Appellants’ answer states that “[t]he Complained of Statements are not of

and concerning Plaintiff Jesus Everado Villarreal Salinas.” CR:40. Thus, the trial

court (as is the case with this Court) was left having to assess whether Appellants

established the Act’s applicability by a preponderance of the evidence by:

       looking at the factual allegations in the petition—allegations that
        Appellants stated in their answer are untrue; and

       looking at the answer, which asserted that the defamatory statement in
        question did not concern Appellee.

Appellee is compelled to question how a court can ever conclude that the Act’s

applicability has been established by a preponderance of the evidence under such a

scenario. For the Court to find that the trial court was precluded from denying

“Entravision’s motion to dismiss on the basis that it failed to satisfy its burden,”




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the Court is effectively taking the position that the trial court was required to find

that the Act’s applicability was established upon—

       the trial court accepting as true the answer’s factually devoid and
        conclusory statements regarding the Act’s application;

       the trial court ignoring the answer’s statement that the defamatory
        statement in question did not concern Appellee;

       the trial court ignoring the answer’s denial of all factual allegations in the
        petition; and

       the trial court accepting the factual allegations in the petition as true
        despite Appellants’ unequivocal denial of those allegations.

      There is no legal authority to support the view that a trial court is compelled

to accept certain portions of a defendant’s answer, while compelled to ignore other

portions, for the purpose of determining that the Act’s applicability was established

by a preponderance of the evidence—nor is there any legal authority supporting

the Court’s decision to engage in such conduct. The Court should have found—and

should now find—that Appellants cannot establish the Act’s applicability by

relying solely on factual allegations in a petition when they have (1) denied the

truth of those factual allegations and (2) asserted that the defamatory statement in

question is unrelated to Appellee. Appellants could have produced an affidavit or

other evidence at trial to establish the Act’s applicability. They did not do this. If

Appellants wanted to rely on pleadings alone, they could have filed an answer

containing either (1) specific denials, as is the practice in federal court, or (2) a



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general denial along with specific factual allegations through which the trial court

could assess the Act’s applicability. They did not do this either.

      To be clear, Appellee is not taking the position that a defendant can never

establish the Act’s applicability by simply having the Court look at the factual

allegations in the petition. But, how can a defendant moving for dismissal utilize

the petition’s factual allegations alone to establish the Act’s applicability by a

preponderance of the evidence when the defendant is denying the truth of those

factual allegations and has further represented that the defamatory statement at

issue is unrelated to the plaintiff? Under such circumstances, a finding that the

defendant failed to establish the Act’s applicability by a preponderance of the

evidence is warranted. Because the Court’s opinion endorses a contrary finding,

the Court should reconsider its opinion, withdraw it, and issue a new one affirming

the trial court’s denial on the motion to dismiss.




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                                     Prayer

      For the reasons stated in this motion, Appellee asks the Court to grant this

motion for rehearing, withdraw its opinion, and affirm the trial court’s denial of

Appellants’ motion to dismiss.

                                                  Respectfully submitted,

                                                    /s/ Ricardo Pumarejo Jr.
                                                  Raymond L. Thomas
                                                  State Bar No. 19865350
                                                  rthomas@ktattorneys.com
                                                  Ricardo Pumarejo Jr.
                                                  State Bar No. 24056168
                                                  rpumarejo@ktattorneys.com
                                                  KITTLEMAN THOMAS, PLLC
                                                  4900-B N. 10th. Street
                                                  McAllen, Texas 78504
                                                  p. 956.632.5056
                                                  f. 956.630.5199
                                                  Counsel for Appellee Jesus
                                                  Everado Villarreal Salinas




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                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 1,371 words. This is a computer-generated document created in
Microsoft Word, using 14-point typeface for all text, except for footnotes which
are in 12-point typeface. In making this certificate of compliance, I am relying on
the word count provided by the software used to prepare the document.

                                                    /s/ Ricardo Pumarejo Jr.
                                                   Ricardo Pumarejo Jr.


                         CERTIFICATE OF SERVICE

     I certify that on November 20, 2015, a true and correct copy of this
document was served on all parties as follows:

      Via e-service:
      Laura lee Prather
      Catherine Lewis Robb
                                                    /s/ Ricardo Pumarejo Jr.
                                                   Ricardo Pumarejo Jr.




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