Mariann Bacharach v. Eufemia Garcia
13-14-00693-CV
| Tex. App. | Aug 31, 2015Background
- Eufemia Garcia sued Mariann Bacharach for defamation, defamation per se, invasion of privacy, and intentional infliction of emotional distress based on a post Bacharach published on liarscheatersrus.com that called Eufemia a prostitute and accused her son Rogelio of various misconducts.
- Bacharach filed a TCPA (Texas Citizens Participation Act / Anti‑SLAPP) motion to dismiss, asserting her post was protected free speech on a matter of public concern and that Garcia could not make a prima facie case.
- At the TCPA hearing Bacharach testified she intended to criticize Rogelio and believed the subject was of public concern; she also admitted mentioning Rogelio’s mother in the post but claimed the post was not directed at Eufemia.
- The trial court denied the motion to dismiss; Bacharach appealed interlocutorily under section 27.008 of the TCPA.
- The Court of Appeals reviewed de novo whether Bacharach met her initial TCPA burden to show the claim arose from her exercise of free speech (a communication on a matter of public concern) and whether the plaintiff established a prima facie case.
- The court concluded Bacharach failed to show by a preponderance that her statement about Eufemia related to a matter of public concern (specifically health or safety) and thus the TCPA did not apply; it affirmed the denial of the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCPA applies because the post was an exercise of free speech on a matter of public concern | Garcia argued Bacharach’s post about Eufemia was not protected as a matter of public concern and thus the TCPA does not apply | Bacharach argued her post was protected speech about matters of public concern (including health/safety and corruption/public services) and thus the claim should be dismissed under the TCPA | Held: TCPA did not apply — Bacharach failed to prove by a preponderance that the communication concerned a public matter (no showing her statement about Eufemia related to health or safety); denial of dismissal affirmed |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explaining TCPA two‑step burden shifting and purpose to protect public participation)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (discussing de novo review of TCPA applicability and prima facie burden)
- In re Estate of Check, 438 S.W.3d 829 (Tex. App.—San Antonio 2014) (discussing SLAPP and the TCPA context)