Jerry Zimmerer Justice

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2020-56444

Panel consists of Justices Wise, Zimmerer, and Poissant.

MEMORANDUM OPINION

Jerry Zimmerer Justice

Appellant Thanh Tu Nguyen brings this interlocutory appeal of the denial by operation of law of his motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.002 et. seq. In three issues on appeal appellant asserts (1) appellant established his communication was protected by the TCPA; (2) the trial court erred in not striking appellee's response to the motion to dismiss; and (3) the trial court erred in failing to grant appellant's motion to dismiss. We conclude that the TCPA applies to appellee's claim of defamation and that appellee did not present clear and specific prima facie evidence to support each essential element of his defamation claims. We accordingly reverse the denial of the motion to dismiss and remand for proceedings consistent with this opinion.

Background

This case is about issues that are particularly significant to the Vietnamese American community. Appellee Hoi Trinh was a member of Vietnamese Overseas Initiative for Conscience Empowerment (VOICE), an organization formed to assist Vietnamese refugees. Appellee sued appellant alleging appellant defamed appellee through the publication of five videos on YouTube. Contending that appellee's suit was based on or related to appellant's free speech rights, appellant filed a motion to dismiss under the TCPA. Appellee opposed the motion on the grounds that he alleged prima facie evidence to support each element of his claims. The trial court did not rule on appellant's motion within the prescribed period of time allowing the motion to be denied by operation of law. See Tex. Civ. Prac. & Rem. Code § 27.008.

In appellee's original petition he alleged that appellant was waging a "smear campaign" against appellee through a series of five YouTube videos. Appellee alleged the videos contained false statements of fact charging appellee with "a crime, dishonesty, fraud, rascality and general depravity." Appellee further alleged appellant knew the statements were false but published them without regard to the truth or falsity of the statements made. Appellee listed five videos dated from October 15, 2019 through December 22, 2019. Appellee's petition contains links to the videos on YouTube and descriptions by appellee of "known false statements" published to third persons via YouTube. Appellee contended the videos led to investigations by the Canadian Broadcasting Company (CBC) and the Canada Border Services Agency.

Appellant answered denying the allegations and asserting the affirmative defense of statute of limitations. Appellant also filed a motion to dismiss appellee's suit under the TCPA. In appellant's motion he asserted that for several years he had been investigating appellee in connection with appellee's role with VOICE. Appellant accused appellee and VOICE of improperly raising funds and defrauding donors to VOICE. As part of appellant's investigation, he allegedly produced several videos and published them on YouTube. According to the motion to dismiss the CBC investigated appellee and VOICE. The parties disagree on the conclusions that can be drawn from the CBC's investigation.

In appellant's TCPA motion to dismiss he asserted that appellee's defamation claim was based on or related to his freedom of speech on a matter of public concern. Appellant further asserted that appellee's defamation claim accrued on April 7, 2018 when appellee and VOICE first learned of the publication of appellant's videos. Attached to appellant's motion to dismiss were several documents including:

• A published history of VOICE;

• A screenshot of a Facebook search for appellee;

• A screenshot from VOICE's Facebook page describing VOICE's mission "to improve Vietnam's human rights situation";

• Screenshots described as fundraising posters for VOICE;

• A Facebook post describing VOICE's resettlement of refugees in Canada;

• An article from the Houston Chronicle quoting appellant and a State Department official in describing work similar to that of VOICE as "unnecessary";

• Excerpts from VOICE's articles of incorporation;

• Fundraising appeals from appellee;

• A letter written by appellant describing "certain evidence of immigration fraud and human smuggling" allegedly perpetrated by VOICE;

• A letter from VOICE's solicitors in Canada requesting that

appellant cease defamatory statements against VOICE;

• A letter from the VOICE board of directors announcing appellee's departure from the board;

• Still photographs from CBC video;

• A written response from VOICE about the CBC story;

• A letter written by appellant to the president of the National Endowment for Democracy accusing appellee and VOICE of fraud;

• A VOICE press release;

• A copy of appellee's original petition;

• A copy of the order granting appellee's motion for substituted service;

• A memorandum of understanding related to a temporary public policy concerning certain Vietnamese persons in Thailand; and

• An affidavit from appellant stating that the content of the videos was originally published in April 2018.

Appellee responded to appellant's motion arguing that appellant triggered an investigation of VOICE by the CBC and that the CBC did not find evidence of wrongdoing. Appellee asserted that appellant's allegations were false and defamatory. Appellee objected to several items of appellant's evidence as hearsay and attached the following evidence to his response:

• Appellee's affidavit listing appellant's "verbatim allegations" against him purportedly from the YouTube videos;

• "Snapshots" of the October 15, 2019, October 17, 2019, October 21, 2019, October 24, 2019, and December 22, 2019 YouTube posts, which appeared to be still photographs taken from the videos;

• Declaration of Father Peter-Prayoon Namwong, a Catholic priest working with Vietnamese refugees in Thailand who assisted VOICE in aiding immigration to Canada;

• Declaration of Thuy Duong (Lisa) Nguyen, a former Executive

Director of VOICE who refuted appellant's allegations;

• Declaration of VyHanh Thi Nguyen, a former staff member at VOICE who also refuted appellant's allegations; and

• Declaration of Anna Nguyen, another former staff member at VOICE.

Appellee did not attach copies of the allegedly defamatory videos or English transcriptions of the videos.

Appellant filed a motion to strike appellee's response to the motion to dismiss as untimely pursuant to section 27.003(e) of the Civil Practice and Remedies Code. ("A party responding to the motion to dismiss shall file the response, if any, not later than seven days before the date of the hearing on the motion to dismiss unless otherwise provided by an agreement of the parties or an order of the court."). Appellee replied to appellant's motion to strike asserting that the response was timely under Local Rule 3.3.3 of the Harris County District Courts. The trial court did not rule on appellant's motion to strike.

The trial court held a non-evidentiary hearing, which was not recorded, on appellant's motion to dismiss but did not rule on the motion before the statutory deadline. See Tex. Civ. Prac. & Rem. Code § 27.005 (providing that court must rule on motion not later than the 30th day following the date the hearing on the motion concludes). The motion to dismiss was denied by operation of law and appellant timely appealed.

Analysis

In three issues appellant asserts (1) he established his communication was protected by the TCPA; (2) the trial court erred in not striking appellee's response to the motion to dismiss; and (3) the trial court erred in failing to grant appellant's motion to dismiss.

I. Standing

In appellant's reply brief he asserts that appellee lacks standing to "bring a derivative suit on behalf of VOICE." Because standing may be raised at any time and in any manner, we consider the issue when raised in the context of a TCPA motion. See Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 22 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (reviewing standing under a plea-to-the-jurisdiction standard when raised in the context of a TCPA motion). A "defamatory statement must be directed at the plaintiff as an ascertainable person to be actionable." Vice v. Kasprzak, 318 S.W.3d 1, 13 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) (citing Newspapers Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960)).

Here, appellee filed his pleading alleging defamatory statements were directed toward him individually, asserting that appellant "began a smear campaign against [appellee]," and noting that appellant's statements "charge[d] [appellee] with a crime, dishonesty, fraud, rascality and general depravity." Appellee's pleadings did not attempt to assert claims on behalf of VOICE. Rather, appellee's pleadings asserted concrete, particularized harm that distinguished his alleged injury from that of VOICE. Appellee therefore had standing to assert a defamation claim on his behalf. See Matthews, 339 S.W.2d at 893 (1960) ("In order to entitle one to maintain an action for an alleged defamatory statement, it must appear that he is the person with reference to whom the statement was made."). Having addressed appellee's standing we turn to appellant's TCPA issues.

II. Standard of Review and Governing Law

We consider whether the trial court properly refused to dismiss appellee's claim under the TCPA, which is codified in Chapter 27 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.2 The TCPA is an anti-SLAPP law; "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). The TCPA "protects citizens from retaliatory lawsuits that seek to intimidate or silence them" from exercising their First Amendment freedoms and provides a procedure for the "expedited dismissal of such suits." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). We construe the TCPA liberally to effectuate its purpose and intent fully. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017); Tex. Civ. Prac. & Rem. Code § 27.011(a).

To further its stated goals, the TCPA establishes a mechanism for summary dismissal of lawsuits that unacceptably threaten the rights of free speech, the right to petition, or the right of association. See Lipsky, 460 S.W.3d at 589; Fawcett, 498 S.W.3d at 655. A defendant invoking the act's protections must show first, by a preponderance of the evidence, that the plaintiff's legal action is based on or is in response to the defendant's exercise of one or more of the enumerated rights. Lipsky, 460 S.W.3d at 586. If the defendant makes the initial showing, the burden shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. See id. at 587. "Prima facie case" refers to the quantum of evidence required to satisfy the nonmovant's minimum factual burden and generally refers to the amount of evidence that is sufficient as a matter of law to support a rational inference that an allegation of fact is true. See id. at 590; Deaver v. Desai, 483 S.W.3d 668, 675-76 (Tex. App.-Houston [14th Dist.] 2015, no pet.).

While the TCPA imposes no elevated evidentiary standard, the evidence offered to support a prima facie case must be "clear and specific." This requires "more than mere notice pleading." Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam). Clear and specific evidence means that the nonmovant must provide enough detail to show the factual basis for its claim. Bedford, 520 S.W.3d at 904. If the movant's constitutional rights are implicated and the nonmovant has not met the required showing of a prima facie case, the trial court must dismiss the nonmovant's claim. Tex. Civ. Prac. & Rem. Code § 27.005. The evidence the trial court shall consider in determining whether a legal action should be dismissed under the TCPA expressly includes "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." Tex. Civ. Prac. & Rem. Code § 27.006(a).

We consider de novo the legal questions of whether the TCPA applies and whether a nonmovant has presented clear and specific evidence establishing a prima facie case of each essential element of the challenged claims. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.). Under the de novo standard, we "make an independent determination and apply the same standard used by the trial court in the first instance." Buzbee, 616 S.W.3d at 26 (quoting Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.-Houston [14th Dist.] 2017, no pet.)).

III. Applicability of the TCPA

In this case, the parties do not dispute that the TCPA applies to appellee's defamation claim and that he had the burden to establish a prima facie case of each element of defamation to avoid dismissal of the claim. We may therefore proceed to the question of whether appellee presented clear and specific evidence of a prima facie case. See D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (relying on parties' agreement that TCPA applied and dispensing with analysis of application of TCPA).

IV. Defamation Framework

If the movant on a TCPA motion to dismiss shows that the TCPA applies, the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element of the claim in question to avoid dismissal. Tex. Civ. Prac. & Rem. Code § 27.005(c). To defeat an appropriate TCPA motion to dismiss, the opponent must establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c).

The Supreme Court of Texas has noted that "[c]lear and specific evidence is not a recognized evidentiary standard[, ]" and "[a]lthough it sounds similar to clear and convincing evidence, the phrases are not legally synonymous." Lipsky, 460 S.W.3d at 589. The term "prima facie case" "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Id. at 590.

We turn to whether appellee met his burden of establishing a prima facie case on each element of his defamation claims. Defamation is a false and injurious impression of a plaintiff published without legal excuse. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). The elements of a defamation claim include: (1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual); and (4) damages (unless the statement constitutes defamation per se). Lipsky, 460 S.W.3d at 593; WFAA-TV, v. McLemore, Inc. 978 S.W.2d 568, 571 (Tex. 1998). The court in Lipsky explained: "[i]n a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss." Lipsky, 460 S.W.3d at 591

The first defamation element we consider is whether appellee established a prima facie case that appellant published false statements of fact. We classify a statement as fact or opinion based on the statement's verifiability and the entire context in which the statement was made. See Hoskins v. Fuchs, 517 S.W.3d 834, 840 (Tex. App.-Fort Worth 2016, pet. denied). In considering whether a legal action should be dismissed, a court must consider the pleadings and supporting and opposing affidavits. Tex. Civ. Prac. & Rem. Code § 27.006(a). In this case appellee has failed to establish by clear and specific evidence a prima facie case for the element of a published false statement of fact.

Both the U.S. Constitution and the Texas Constitution "robustly protect freedom of speech," Rosenthal, 529 S.W.3d at 431, and the Texas Constitution expressly acknowledges a cause of action for defamation. See Tex. Const. art. I, § 8 ("Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege[.]"); see also Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). To avoid the threat to free speech that unrestrained defamation liability poses, the U.S. Constitution "imposes a special responsibility on judges whenever it is claimed that a particular communication is [defamatory]." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). For appellate judges, one of these responsibilities is to comply with the "requirement of independent appellate review" as a matter of "federal constitutional law." Bose, 466 U.S. at 510. "[T]he first amendment requires the appellate court to independently review the evidence." Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018) (quoting Doubleday & Co., v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984)).

In response to appellant's motion to dismiss appellee alleged that appellant published defamatory statements against him in several YouTube videos. Appellee purports to repeat those defamatory statements in his petition and affidavit attached to his response but fails to put those statements in the context of the entire video publications. Appellee alleged appellant accused him of defrauding donors to VOICE, human trafficking, abandoning "boat people" in favor of communists, tax evasion, and being a "tool" of a Vietnamese criminal gang. Appellee did not, however, provide translated copies of the YouTube videos or certified English transcripts of the contents of the YouTube videos.

In a defamation case, the threshold question is whether the words used "are reasonably capable of a defamatory meaning." Tatum, 554 S.W.3d at 624. If a statement is not verifiable as false, it is not defamatory. Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22 (1990)). Similarly, even when a statement is verifiable as false, it does not give rise to liability if the "entire context in which it was made" discloses that it is merely an opinion masquerading as a fact. See Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002) ("It is well settled that 'the meaning of a publication and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements.'" (quoting Turner, 38 S.W.3d at 115)). Consistent with this approach, a publication's truth or falsity depends on whether the publication "taken as a whole is more damaging to the plaintiff's reputation than a truthful [publication] would have been." KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016) (quoting Neely, 418 S.W.3d at 63).

Because appellee failed to provide the trial court or this court with the content in which he asserts he was defamed, neither the trial court, nor this court, could review the entirety of the publications to determine whether appellant made false statements of fact defaming appellee. See Bentley, 94 S.W.3d at 579 (the meaning of a publication and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements); Cf. Guzman v. Sorola, No. 13-21-00168-CV, 2022 WL 242899, at *12 (Tex. App.-Corpus Christi Jan. 27, 2022, no pet. h.) (mem. op.) (court reviewed content of YouTube videos alleged to be defamatory); Hand v. Hughey, No. 02-15-00239-CV, 2016 WL 1470188, at *4 (Tex. App.-Fort Worth Apr. 14, 2016, no pet.) (mem. op.) (same).

By failing to present transcripts of the entire videos appellee likewise failed to present sufficient evidence of the second element of defamation, i.e., whether the statements were defamatory toward appellee. A statement is defamatory if it tends to injure a person's reputation or impeach a person's honesty, integrity, or virtue. Cecil v. Frost, 14 S.W.3d 414, 417 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Whether a statement is defamatory is a question of law for the court. Id. For this determination, we construe the statement as a whole in light of surrounding circumstances based on how a reasonable person would perceive the entire statement. HDG, Ltd. v. Blaschke, No. 14-18-01017-CV, 2020 WL 1809140, at *7 (Tex. App.-Houston [14th Dist.] Apr. 9, 2020, no pet.) (mem. op.) (citing Lipsky, 460 S.W.3d at 594).

To be sure, appellee provided links to the YouTube videos in his original petition and his affidavit. Even if the court could have gone outside the record and accessed those links, we have no assurance that the videos remain unchanged since their original publication. The videos themselves were not made a part of the trial court record nor a part of the appellate record. Moreover, the record reflects that the YouTube videos were published in Vietnamese. Neither the trial court nor this court could review the content of the videos without certified English translations. See Tex. R. Evid. 1009 (setting out procedure for admitting translation of document in a foreign language). The court of appeals does not act as a translator for litigants. See El Pescador Church, Inc. v. Ferrero, 594 S.W.3d 645, 664, n.10 (Tex. App.-El Paso 2019, no pet.). Although appellee provided excerpts of the allegedly defamatory statements, we must review the entire publication to determine whether appellee met his burden to establish prima facie evidence of each element of his claim. See Bentley, 94 S.W.3d at 579.

By failing to provide the trial court and this court with the entire content of which he complains, appellee failed to establish by clear and specific evidence a prima facie case for the first essential element of defamation, publication of a false statement of fact.

Concluding that appellee failed to establish a prima facie case for every element of his defamation claim, we sustain appellant's first and third issues.

Conclusion

Because appellee failed to establish clear and specific evidence of each element of his defamation claim, we reverse the denial of appellant's motion to dismiss under the TCPA. We remand to the trial court to (1) award the amount of court costs and reasonable attorney's fees incurred in defending against the legal action, and (2) impose sanctions, if any. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(1), (2).