Mariann Bacharach v. Eufemia Garcia
13-14-00693-CV
| Tex. App. | Jul 27, 2015Background
- Plaintiff Eufemia Garcia (private, elderly Hidalgo County resident) sued defendant Mariann Bacharach for libel/libel per se, intentional infliction of emotional distress, invasion of privacy, and related torts based on internet posts accusing Garcia of being a prostitute.
- Bacharach admitted under oath she authored the Liars and Cheaters post and acknowledged Garcia is not a public figure.
- Bacharach moved to dismiss under the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code ch. 27; the trial court denied the motion.
- Appellee resisted dismissal with testimony, affidavit, petition, and call-record evidence; she alleged reputational injury, exacerbation of health problems, and emotional distress.
- Central legal dispute: whether Bacharach met her TCPA burden (27.005(b)) showing the suit arises from protected speech on a matter of public concern, and if so whether Garcia carried the shifted burden (27.005(c)) to present clear and specific evidence of a prima facie case.
Issues
| Issue | Plaintiff's Argument (Garcia) | Defendant's Argument (Bacharach) | Held |
|---|---|---|---|
| 1. Does the TCPA apply (were statements on matter of public concern)? | Statements target a private individual about private sexual conduct; not a matter of public concern. | TCPA protects speech broadly; dismissal appropriate if speech touches public concern. | Trial court found TCPA did not shelter defendant; court accepted that Garcia is a private person and statements were not public concern. |
| 2. Did Bacharach meet her 27.005(b) burden (preponderance)? | N/A (plaintiff argues defendant failed to show public-concern nexus). | Bacharach contends her posts are protected communications under TCPA. | Record: Bacharach admitted posts and conceded Garcia is not a public figure; court disbelieved protected-public-concern claim. |
| 3. If 27.005(b) met, did Garcia meet 27.005(c) (clear and specific evidence of prima facie case)? | Garcia produced testimony, affidavit, petition, and supporting evidence sufficient to establish prima facie elements of defamation, IIED, invasion of privacy. | Bacharach argued evidence was insufficient or irrelevant. | Trial court held Garcia presented clear and specific evidence to avoid dismissal; appellate brief defends that ruling. |
| 4. Are the alleged statements actionable (defamation, per se; invasion of privacy; IIED)? | Statements were factual, false, defamatory per se (sexual misconduct), caused emotional and reputational harm. | Defendant asserted subjective belief/intent and TCPA immunity. | Court treated statements as actionable: defamation per se, invasion of privacy, and IIED claims survived TCPA challenge. |
Key Cases Cited
- Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex. App.) (TCPA step analysis and evidentiary burdens)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (fact-finder may resolve witness credibility and conflicting evidence)
- Bentley v. Bunton, 94 S.W.3d 579 (Tex. 2002) (defamation principles; knowingly false statements not protected)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (standard for fault in defamation involving media — distinguished here)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (factual verifiability distinguishes protected opinion from actionable statement of fact)
- Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995) (invasion of privacy by public disclosure of private facts)
- Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000) (objective test for how publication would be perceived by an ordinary reader)