NELLY SUAREZ GARCIA, Appellant v. LORRIE SEMLER, Appellee
No. 05-21-00750-CV
Court of Appeals Fifth District of Texas at Dallas
December 30, 2022
On Appeal from the 14th Judicial District Court, Dallas County, Texas. Trial Court Cause No. DC-20-04494.
AFFIRMED and Opinion Filed December 30, 2022
OPINION
Before Justices Myers, Nowell, and Rosenberg1
Appellant Nelly Suarez Garcia sued appellee Lorrie Semler for defamation and malicious prosecution. Semler moved to dismiss the case under the Texas Citizens Participation Act (TCPA), and the trial court granted her motion. Garcia appeals, in six issues, complaining about the court‘s failure to hold an oral hearing, consideration of Semler‘s evidence, and application of the TCPA. We conclude the trial court did not err by granting the motion to dismiss and affirm.
BACKGROUND
In March 2020, Garcia filed her original petition against Semler, asserting claims for malicious prosecution and defamation. In her live petition, Garcia alleged the following facts:
On or before August 16, 2019, Semler placed several estate-sale yard signs around the Town of Addison in violation of an Addison sign ordinance. On August 16, 2019, Semler gave false information to Addison‘s police and prosecutor, claiming that Garcia had sought to deprive Semler of tangible personal property—namely, one of the estate-sale signs. This resulted in a criminal prosecution against Garcia for theft. Additionally, from August 16 to August 20, 2019, Semler published several defamatory statements about Garcia on Facebook.
Semler answered and on May 26, 2020, filed a motion to dismiss under the TCPA,
In June 2020, Semler filed a notice that her motion to dismiss would be heard on July 15, 2020, at 11:00 a.m., and then she filed an amended notice that her motion would be heard on July 16, 2020, at 11:00 a.m.
On July 9, 2020, Garcia filed a response to Semler‘s TCPA motion to dismiss. The response included objections to evidence attached to Semler‘s motion to dismiss. On July 13, 2020, Semler filed a reply.
The trial court cancelled the oral hearing and announced it would consider Semler‘s TCPA motion on submission. The record reflects that this occurred on July 15 or 16, 2020. The fact that the trial court heard the motion by submission is reflected on the trial court‘s docket sheet, and it is asserted in Garcia‘s appellate brief without contradiction by Semler. See
On July 31, 2020, the trial court signed an order granting Semler‘s motion to dismiss and permitting Semler to submit additional evidence to support an award of attorney‘s fees and costs. Garcia appealed this order, but we dismissed her appeal for want of jurisdiction. Garcia v. Semler, No. 05-20-00761-CV, 2021 WL 1381156, at *1 (Tex. App.—Dallas Apr. 13, 2021, no pet.) (mem. op.).
In the interim, Semler filed evidence of her attorney‘s fees. On April 26, 2021, after we had dismissed Garcia‘s appeal, Garcia filed a motion for reconsideration in the trial court, arguing, among other things, that the TCPA required the trial court to hold a hearing but the trial court had not set a hearing on Semler‘s TCPA motion to dismiss. Semler filed a response to the motion to reconsider on June 3, 2021, arguing, among other things, that the TCPA does not require an oral hearing.
On July 6, 2021, the trial court held an oral hearing on Garcia‘s motion to reconsider and later signed an order denying the motion. Semler also filed additional evidence about her attorney‘s fees.
On August 4, 2021, after a hearing about Semler‘s attorney‘s fees, the trial court signed a Final Judgment and Order Granting Attorneys’ Fees. The trial court awarded Semler fees of $22,150.00, plus additional amounts for appellate attorney‘s fees, and postjudgment interest.
Garcia appealed the final judgment, raising the following six issues:
- Whether the District Court should have held a hearing on the TCPA motion.
- Whether Semler‘s evidence established the applicability of the TCPA to Garcia‘s claims.
- Whether Garcia‘s unrebutted summary-judgment evidence established the required elements of Garcia‘s defamation claim.
- Whether Garcia‘s unrebutted summary-judgment evidence established the required elements of Garcia‘s malicious-prosecution claim.
- Whether Garcia‘s unrebutted summary-judgment evidence precluded as a matter of law Semler‘s defenses or inferential rebuttals to Garcia‘s malicious-prosecution
claim. - Whether the District Court should have denied attorney‘s fees to Semler and actually awarded them against her.
DISCUSSION
A. Whether the TCPA requires the trial court to hold an oral hearing (Issue 1).
In her first argument, Garcia contends that the trial court‘s judgment should be reversed because the trial court erred in cancelling the oral hearing on Semler‘s TCPA motion and instead granted the motion after considering it submitted on the parties’ filings. Garcia argues the TCPA requires an oral hearing on a motion to dismiss. Both sides agree that no Texas court has decided whether the TCPA mandates an oral hearing, and we have found no such case. Whether an oral hearing is required for the submission of a TCPA motion to dismiss presents a question of statutory interpretation, so our standard of review is de novo. See Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).
Garcia recognizes Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam), for the proposition that “[u]nless required by the express language or the context of the particular rule, the term ‘hearing’ does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court.” But she then takes the position that we should interpret the TCPA as requiring an oral hearing for the same reasons the Supreme Court of Texas held that a
Semler responds that the TCPA does not require an oral hearing. She analogizes the TCPA to Texas summary-judgment practice, relying upon the Supreme Court of Texas‘s opinion in Martin. In that case, the court held that an oral hearing is not mandatory on a summary-judgment motion. 989 S.W.2d at 359. Semler argues that although the TCPA contemplates a hearing, there is no provision in the TCPA that expressly calls for a personal appearance or oral presentation to the trial court. Rather, she argues, the TCPA provides the same framework to dispose of a TCPA
We agree with Semler. In Martin, the Supreme Court of Texas held that although
First, with respect to live testimony, before the 2019 amendments to the TCPA,3 the Texas courts of appeals were split on the question about whether live testimony was permitted at a TCPA hearing. See Columbia Valley Healthcare Sys., L.P. v. Pisharodi, No. 13-18-00660-CV, 2020 WL 486491, at *6 n.9 (Tex. App.—Corpus Christi-Edinburg Jan. 30, 2020, no pet.) (mem. op.) (discussing the split). When the legislature amended
In determining whether a legal action is subject to or should be dismissed under this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.
Second, with respect to deadlines established by the hearing date, the legislature also conformed TCPA procedure to summary-judgment procedure when it amended
We overrule Garcia‘s first issue.
B. Whether Semler‘s evidence in support of her TCPA motion was defective and requires reversal (Part of Issue 2).
Semler‘s TCPA motion was verified and also supported by, among other things, the unsworn Declaration of Lorrie Semler. In her response to the motion, Garcia objected to various paragraphs of Semler‘s declaration and to one paragraph in the verified factual background section of Semler‘s TCPA motion. On appeal, Garcia argues that the evidence that Semler tendered with her TCPA motion was defective, that the trial court should have sustained Garcia‘s objections rather than ignored them, and that the judgment should be reversed. Specifically, Garcia objected to various statements in Semler‘s declaration and statements in the factual background section of Semler‘s motion on grounds of hearsay, best-evidence rule, speculation, self-serving, legal conclusion, or some combination thereof.
To preserve error for appeal, a party must make a timely request, objection, or motion and either (1) obtain an express or implied ruling from the trial court or (2) object to the trial court‘s refusal to rule. See
Based on the record before us, however, we cannot conclude that the trial court refused to rule on Garcia‘s objections. Even if it had refused to rule, it was Garcia‘s obligation to object to the trial court‘s refusal to rule. See
Accordingly, we conclude that nothing is preserved for our review. See Bibby v. Bibby, 634 S.W.3d 401, 410 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (under the TCPA, as amended in 2019, evidentiary objections not preserved when party did
Accordingly, to the extent Garcia‘s second issue is based on her argument that the trial court ignored her evidentiary objections, we overrule her second issue.
C. Whether the TCPA was applicable to Garcia‘s claims (Part of Issue 2).
Garcia‘s next argument concerns whether Semler demonstrated the applicability of the TCPA to Garcia‘s malicious-prosecution and defamation claims. Before addressing her argument, we provide a brief overview of the TCPA‘s three-step framework.
1. Three-step analysis required by the TCPA and standard of review
The TCPA protects citizens who petition or speak out on matters of public concern from retaliatory lawsuits intended to silence them. Barnes v. Kinser, 600 S.W.3d 506, 509 (Tex. App.—Dallas 2020, pet. denied). That protection comes in the form of a motion to dismiss for a suit that appears to stifle the defendant‘s exercise of those rights. Id. A TCPA motion to dismiss generally requires a three-step analysis.
First, the TCPA movant bears the initial burden of demonstrating that the legal action is based on or in response to the movant‘s exercise of a protected right, such as the right of free speech or the right to petition, or certain other protected conduct. See
We review de novo the trial court‘s determinations that the parties met or failed to meet their respective burdens under the TCPA. Vaughn-Riley v. Patterson, No. 05-20-00236-CV, 2020 WL 7053651, at *2 (Tex. App.—Dallas Dec. 2, 2020, no pet.) (mem. op.).
a. Malicious Prosecution
Garcia argues that her malicious-prosecution claim did not implicate Semler‘s right to petition. We note that in Semler‘s TCPA motion, she argued that Garcia‘s malicious-prosecution claim satisfied step one of the TCPA analysis because the claim sought “to punish Semler for nothing more than filing charges with a criminal authority.” Semler contended that her conduct amounted to an exercise of the right to petition because the TCPA defines that right to include communications in or pertaining to a judicial proceeding. See
Garcia‘s argument ignores the three-step analysis required by the TCPA. A court‘s concluding that Semler carried her initial TCPA burden as to Garcia‘s malicious-prosecution claim does not automatically require dismissal of the claim “regardless of the merits,” as Garcia contends. It merely shifts the burden to Garcia to produce prima facie evidence of each element of the claim. See id.
b. Defamation
Garcia also argues that there was no basis for Semler‘s position that her right to petition was applicable to Garcia‘s defamation claim. She contends that the statements at issue were on Facebook and did not give rise to the criminal proceeding or constitute testimony in the criminal proceeding. Thus, Garcia argues, the statements challenged as defamatory were not “communications in or pertaining to” “a judicial proceeding” constituting the exercise of the right to petition as defined by the TCPA. See
However, we conclude below that Semler met her step-one burden by demonstrating that Garcia‘s defamation claim was based on or in response to her exercise of the right of free speech. Thus, it is not necessary for the disposition of this appeal for us to determine whether Semler invoked the right to petition when seeking dismissal of Garcia‘s defamation claim or, if so, whether she met her step-one burden in that regard. See
3. The right of free speech and Semler‘s step-one burden
Garcia asserts Semler did not meet her step-one burden with respect to Garcia‘s defamation claim and the exercise of the right of free speech.7 Garcia argues
The TCPA defines the exercise of the right of free speech as “a communication made in connection with a matter of public concern.”
Garcia does not argue that any particular Facebook post did not address criminal activity. Because we may not reverse on grounds not raised by Garcia, we do not attempt to parse them out either. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (per curiam) (appellate court cannot reverse based on arguments not raised by appellant).
Accordingly, we overrule the remainder of Garcia‘s second issue.
D. Whether Garcia offered sufficient evidence of her defamation claim under the TCPA (Issue 3).
Garcia argues that she established by clear and specific evidence the prima facie elements of her defamation claim and met her step-two burden. See
1. Applicable law
The elements of a defamation claim include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff,
Only statements that are verifiable as false can support a defamation claim. See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018). Statements that cannot be verified or that cannot be understood to convey a verifiable fact are mere opinions and will not satisfy the first element of defamation. See id.
2. The evidence
Garcia and Semler each filed a declaration and other evidence regarding the material facts of the case.
According to Semler‘s declaration, Semler placed “numerous estate sale signs” throughout the neighborhood of the house where the sale would occur. On August 16, Semler received a text message from Garcia stating, “[Y]our [Signs are] placed on public property against city ordinance – please remove[.]” On August 17, Semler placed signs throughout the neighborhood advertising an open house for the home. On August 17, three of the signs were left on the doorstep of the house where the estate sale was taking place accompanied by a note alleging that the signs were not allowed on public or private property. A person named Tom O‘Brien informed Semler that Garcia was responsible for removing one of the signs. Semler contacted the authorities to report her belief that Garcia had stolen and/or removed some or all of her signs, and a criminal case was brought against Garcia in Addison municipal court.
Garcia filed an affidavit that Semler submitted to the Addison police department wherein Semler stated that she conducted an estate sale at the house on August 16–17. Semler stated that she set out approximately nine estate-sale signs the morning of August 16. After the traffic at the sale thinned out considerably, she went out to check the signs, found that several were gone, and replaced them. She then stated that sometime after lunch, a customer told her that she saw a woman driving a red car picking up the signs. She stated that, at this point, she went out again and replaced the signs and then called the police.
According to Garcia‘s declaration, on August 16, 2019, Semler posted as many as nine estate-sale signs around Addison advertising an estate sale that Semler was conducting on August 16 and 17. Garcia sent Semler a text message telling her that an Addison ordinance prohibited the posting of such estate-sale signs other than on the property where the estate sale was occurring.
According to Garcia‘s declaration, Semler made six Facebook posts that were defamatory about Garcia:
- “Don‘t mess with my estate sale signs! You are a thief!” (August 16, 2019.)
- “N.G...Pure evil.” (August 16, 2019.)
- “When you die NG, I hope someone does to you what you have done to TM‘s neighbor to sabotage your estate sale. You are one miserable, wretched little person.” (August 17, 2019.)
- “Oh Lordy! I hope there are fingerprints. Stolen signs found on the doorstep this morning. Hope you fry, NG! You were seen taking them. Theft is theft!” (August 17,
2019.) - “Lookie, lookie! New open house sign to replace some STOLEN on Saturday[.] Lordy, there‘s a witness.” (August 20, 2019.)
- “Just because you‘re found ‘not guilty’ doesn‘t mean you didn‘t do it. Hope you learned your lesson!” (February 21, 2020.)
Garcia‘s declaration also said that she was prosecuted for “theft from an individual of property with a value under $100,” a Class C misdemeanor. On February 21, 2020, Garcia was acquitted after a trial.
3. Application of law to the evidence
With respect to evidence that Semler published a false statement of fact to a third party that was defamatory concerning Garcia, Garcia generally argues that she was subject to libel per se by three Facebook postings, though she does not specify which ones, that accused her of theft. She also argues that the last sentence in Facebook post 3 was defamatory because it impeached her honesty, integrity, virtue, or reputation and exposed her to public hatred, contempt or ridicule, or financial injury.
We conclude that the statement describing Garcia as “pure evil” (Facebook post 2) and as a “miserable, wretched little person” (the last sentence of Facebook post 3) are no evidence of defamation because they are statements of opinion that cannot be verified as fact. See Dallas Morning News, 554 S.W.3d at 639.
We further conclude that the post stating “[j]ust because you‘re found ‘not guilty’ doesn‘t mean you didn‘t do it” (the first sentence of Facebook post 6) is no evidence of defamation because it is not false; a person who is acquitted of a crime can nevertheless be guilty of that crime in fact. Semler‘s post about “[h]oping you learned your lesson” (second sentence of Facebook post 6) is no evidence of defamation because it contains no statement of fact about Garcia.
As for the remaining statements that Garcia stole signs and was a thief and sabotaged an estate sale (Facebook post 1, the first sentence in Facebook post 3, and Facebook posts 4 and 5), we assume without deciding that, in context, they amount to evidence of defamation‘s first two elements. Nevertheless, we conclude that Garcia‘s defamation claim fails because Garcia did not produce clear and specific evidence that Semler acted with negligence in making those statements.
Garcia‘s only appellate argument that Semler acted with negligence is that Semler misstated the contents of an affidavit of an alleged witness to Garcia‘s theft. However, Garcia does not specify what witness affidavit she is referring to that Semler supposedly misstated, nor does she explain where or how Semler misstated the affidavit with respect to any of the Facebook statements. The only affidavit in the record other than Semler‘s is the affidavit of Tom O‘Brien to the Addison police. He said that on August 17, 2019, he saw Garcia get out of her car and “head[] towards the open house sign.” He also said that Garcia drives a red Mercedes.
In her Facebook statements, Semler said, “You were seen taking them,” and, “Lordy, there‘s a witness.” Even assuming these statements were false, we see no evidence showing that Semler acted unreasonably in believing and making these statements. In her declaration, Semler said, “[A]n individual named Tom O‘Brien informed me that Garcia was responsible for the removal of one of the signs.” In her affidavit to the police, Semler said that during the estate sale, sometime after lunch, “a customer told me [Semler] she saw a woman driving a red car picking up the signs.” In that same affidavit, Semler
In her declaration, Garcia admitted that she had texted Semler that her estate-sale signs other than the one at the house for the estate sale were in violation of an Addison sign ordinance. And Semler stated in her declaration that she had determined that the number texting her belonged to Garcia; that Garcia had texted her about the signs being placed on public property against a city ordinance; and that the following day, three signs had been left on the doorstep of the home with a note alleging that the signs were not allowed on public or private property. A Facebook post in Garcia‘s own evidence depicts a handwritten note on an estate sale sign stating, “Neighborly reminder [t]hese signs are not allowed,” indicating that the signs had been placed there by a “neighbor” and not legal authorities.
Thus, there is evidence showing that Semler had a reasonable basis for saying that there was a witness to Garcia‘s theft. More importantly, we see no evidence proving that she lacked a reasonable basis for that statement—that is, that she acted negligently. Although O‘Brien‘s written statement to the Addison police (dated August 22, 2019), said only that he saw Garcia approach an open-house sign and not that he saw her take a sign, that fact does not prove that O‘Brien said the same thing to Semler earlier when she posted the comments between August 16th and 20th—nor does it prove that Semler was ever made aware of what O‘Brien had put in his affidavit to the police. Moreover, Semler also reported that on August 16, another witness, an unidentified estate-sale customer, also told her that she saw a woman in a red car picking up the signs, and O‘Brien stated to the police that Garcia drove a red car. Thus, Semler could have been referring to the estate-sale customer rather than O‘Brien when she said there was a witness.
Garcia had the burden to produce clear and specific evidence that Semler acted negligently in making a false, defamatory statement about Garcia. Garcia‘s only appellate argument that there is clear and specific evidence of Semler‘s negligence is based on an alleged discrepancy between O‘Brien‘s affidavit to the police (not his statement to Semler) and Semler‘s assertions on Facebook. We conclude that this discrepancy, if any, standing alone, is not clear and specific evidence that Semler was negligent. Accordingly, we conclude that Garcia did not demonstrate that she met her step-two burden with respect to her defamation claim. Thus, the trial court did not err by dismissing this claim.
We overrule Garcia‘s third issue.
E. Whether Garcia offered sufficient evidence of her malicious-prosecution claim under the TCPA (Issue 4).
Garcia argues that she offered clear and specific evidence of the elements of her malicious-prosecution claim.
The elements of a claim for malicious prosecution are as follows: (1) a criminal prosecution was commenced against the plaintiff; (2) the defendant initiated or procured that prosecution; (3) the prosecution terminated in the plaintiff‘s favor; (4) the plaintiff was innocent of the charges; (5) the defendant lacked probable cause to initiate the prosecution; (6) the defendant acted with malice; and (7) the plaintiff suffered damages. See Kroger Tex. Ltd. P‘ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex. 2006). The probable-cause element asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed
We focus our analysis on the element of lack of probable cause because it is dispositive. Garcia had the burden to show this element with clear and specific evidence. See
We conclude that Garcia has not shown that there was clear and specific evidence that Semler lacked probable cause to make her report about Garcia to the police. Accordingly, we conclude that Garcia did not demonstrate that she met her step-two burden with respect to her malicious-prosecution claim. Thus, the trial court did not err by dismissing this claim.
We overrule Garcia‘s fourth issue.
F. Whether Semler‘s evidence established any defenses or inferential rebuttals to Garcia‘s malicious-prosecution claim (Issue 5).
Garcia argues that Semler raised multiple arguments in the nature of affirmative defenses or inferential rebuttals to Garcia‘s malicious-prosecution claim but none were valid. Because we conclude above that Garcia did not meet her step-two burden with respect to her malicious-prosecution claim, we do not need to discuss Garcia‘s arguments relating to Semler‘s step-three burden under the TCPA. See
G. Whether the trial court should have denied attorney‘s fees to Semler and instead awarded them to Garcia (Issue 6).
Finally, Garcia argues that we should reverse the award of attorney‘s fees against her because we should reverse the granting of Semler‘s TCPA motion to dismiss.
Because we conclude above that Garcia is not entitled to reversal of the judgment dismissing her claims, we reject her contention that the trial court erred by awarding Semler her attorney‘s fees. See
Garcia also argues that the trial court erred by not awarding Garcia her attorney‘s fees under
We overrule Garcia‘s sixth issue.
CONCLUSION
We affirm the trial court‘s judgment.
/Barbara E. Rosenberg/
BARBARA ROSENBERG
JUSTICE, ASSIGNED
210750f.p05
JUDGMENT
In accordance with this Court‘s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee LORRIE SEMLER recover the full amount of the trial court‘s judgment and the costs of this appeal from appellant NELLY SUAREZ GARCIA and from any supersedeas bond or cash deposit in lieu of supersedeas bond. After the judgment and all costs have been paid, we DIRECT the clerk of the trial court to release the balance, if any, of any cash deposit in lieu of supersedeas bond to the person who made the deposit.
Judgment entered this 30th day of December 2022.