Diana Izaguirre v. Joe Louis Aguilar

• Court: Court of Appeals of Texas
• Decided: February 25, 2021
• Docket: 13-19-00225-CV
• Status: Published

Opinion

NUMBER 13-19-00225-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DIANA IZAGUIRRE, Appellant,

v.

JOE LOUIS AGUILAR, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Tijerina

This is an accelerated interlocutory appeal from the trial court’s order denying

appellant Diana Izaguirre’s motion to dismiss pursuant to the Texas Citizens Participation

Act (“TCPA”). See generally TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–.011. By one

issue, Izaguirre asserts appellee Joe Aguilar failed to establish by clear and specific

evidence that the statement attributed to Izaguirre was defamatory. We reverse and remand.1

I. BACKGROUND

Aguilar was the former general manager of Hidalgo County Irrigation District No. 6

(HCID). Izaguirre is the president of the HCID board.

On January 13, 2019, Aguilar sued Izaguirre for slander. In his complaint, Aguilar

set out that on September 16, 2018, the HCID board held a special meeting to discuss

terminating Aguilar’s employment with HCID. However, at the special board meeting,

Aguilar resigned from his employment “effective immediately” and the board accepted his

resignation. It is undisputed that following the board meeting, Izaguirre attended a social

event that evening wherein she apologized to her dining companions for being late,

stating that she was “at a board meeting,” where she “had to fire Joe Aguilar.” According

to Aguilar, several people questioned his wife about the “firing” that evening. Aguilar

asserted that “[a]s a result of Izaguirre’s slanderous statement [that she had to fire him],

Aguilar’s marriage suffered and his good reputation in the community was tarnished, as

people were led to believe Aguilar had been fired from his job.”

Izaguirre responded generally denying the allegations and thereafter filed a motion

to dismiss under the TCPA, claiming that (1) Aguilar’s suit should be dismissed because

he failed to establish the elements of his defamation claim by clear and specific evidence,

and (2) to the extent Aguilar met his burden, Izaguirre established the affirmative defense

1 This TCPA case is decided under the version of the statute in effect before the September 1,

2019 amendments. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687 (providing that the amendments apply only to an action filed on or after September 1, 2019).

2 of substantial truth. As evidence, Izaguirre attached: (1) an affidavit wherein a HCID board

member discussed Aguilar’s termination, and (2) a “Charge of Discrimination” form that

Aguilar submitted to the Texas Workforce Commission on Civil Rights Division, wherein

he stated under penalty of perjury that he had been “terminated” from his position. Aguilar

responded asserting that (1) Izaguirre could not rely on the TCPA because she did not

admit she published the statements at issue; (2) the TCPA was inapplicable because the

suit did not infringe on her constitutional rights; and (3) Aguilar established a prima facie

case.

Following a hearing, the trial court denied Izaguirre’s motion to dismiss. This

interlocutory appeal followed. See id. § 27.008(a).

II. TCPA

By her sole issue, Izaguirre argues that Aguilar failed to meet the elements for

slander or slander per se because Aguilar produced no evidence that Izaguirre’s

statement was defamatory.2 Consequently, the trial court should have granted her motion

to dismiss under the TCPA.

A. Standard of Review and Applicable Law

We review de novo a trial court’s ruling on a TCPA motion to dismiss. Dall. Morning

News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). In conducting our review, we

2 Alternatively, Izaguirre argued that the trial court erred in denying her motion to dismiss because as a public official, Aguilar’s suit concerned a communication in connection with a “matter of public concern” and Izaguirre’s “exercise of the right to petition.” Therefore, Aguilar failed to show the statement was: (1) false, or not substantially true; (2) defamatory; and (3) published with malice. We need not address this alternative argument as it is not dispositive. See TEX. R. APP. P. 47.1.

3 consider the pleadings and evidence in a light favorable to the nonmovant. Dyer v. Medoc

Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).

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) (op. on reh’g). The TCPA is intended “to

encourage and safeguard the constitutional rights of persons to petition, speak freely,

associate freely, and otherwise participate in government to the maximum extent

permitted by law and, at the same time, protect the rights of a person to file meritorious

lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002; Cox Media

Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no

pet.). 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); see also TEX. CIV. PRAC. & REM. CODE

ANN. § 27.011(a).

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

4 the plaintiff’s legal action is “based on, relates to, 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.

The evidence offered to support a prima facie case must be “clear and specific.”

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. Id. 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 ANN. § 27.005. The trial

court considers “the pleadings and supporting and opposing affidavits stating the facts on

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

B. Defamation

To be considered slander per se, the statement must (1) impute the commission

of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a person’s

office, business, profession, or calling; or (4) impute sexual misconduct. Moore v.

Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco 2005, no pet.). “Slander is a

5 defamatory statement that is orally communicated or published to a third person without

legal excuse.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).

“The threshold issue of whether the words used are capable of a defamatory

meaning is a question of law for the court.” Columbia Valley Reg’l Med. Ctr. v. Bannert,

112 S.W.3d 193, 199 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.). We construe

the statement as a whole in light of surrounding circumstances based upon how a person

of ordinary intelligence would perceive the entire statement. Id. at 198. Further, we view

the statements in their context, and they may be false, abusive, unpleasant, or

objectionable to the plaintiff but still not be defamatory in light of the surrounding

circumstances. Id. Only when we determine that “the language is ambiguous or of

doubtful import should a jury then determine the statement’s meaning and the effect the

statement’s publication has on the ordinary reader.” Id.; Musser v. Smith Protective

Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987). A statement is ambiguous if “there is a

question whether the hearer could reasonably understand the statement in a defamatory

sense.” Bannert, 112 S.W.3d at 198.

III. DISCUSSION

First, Izaguirre contends that Aguilar filed suit in response to her exercise of her

right to petition while Aguilar maintains the TCPA is inapplicable to her claim.

A. Exercise of the Right to Petition

Pursuant to the TCPA, speech concerning “a communication in or pertaining to . . .

a proceeding of a governing body of any political subdivision” is an exercise of one’s right

6 to petition. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(vii). “A communication in or

pertaining to . . . a communication in connection with an issue under consideration or

review by . . . a governmental body . . . or an official proceeding” is also speech exercising

one’s right to petition. See id. § 27.001(4)(B). Aguilar asserts that Izaguirre told her dining

companions she was late to the party because she was at a HCID board meeting where

she had to fire Aguilar. Thus, based on Aguilar’s allegation, Izaguirre’s statement

concerned a communication “pertaining to” “a proceeding of a governing body”—actions

that previously transpired at a HCID board meeting, and the parties do not dispute that

the HCID board is a governmental body. See Kirby Lake Dev., Ltd. v. Clear Lake Water

Auth., 320 S.W.3d 829, 836 (Tex. 2010) (“Water control and improvement districts are

valid and existing governmental agencies and bodies politic.”) (internal quotations

omitted).

Nonetheless, Aguilar argues that “Izaguirre was not exercising her right to petition

because her slanderous statement was not made at the [board] meeting.” However, the

TCPA contains no such requirements. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.001(4)(A)(vii). He also argues that “Izaguirre is addressing Aguilar’s employment

status[,] not directing speech toward the government.” But the TCPA does not require

that a communication be made at a governmental proceeding or that a communication

be directed toward the government. See id. Moreover, Aguilar’s employment status is

precisely why the HCID board held a special meeting on September 16, 2018, and Aguilar

concedes that “the meeting in which Aguilar tendered his resignation as employee of the

7 [HCID] was done in open session . . . .” See id. § 27.001(4)(A)(B) (providing that

communication in connection with an issue under consideration by a governmental body

is an exercise of the “right to petition”). Therefore, we conclude that Izaguirre was

exercising her right to petition, and the TCPA applies. See id.

We next address the second step—whether Aguilar met his burden of “establishing

by clear and specific evidence a prima facie case for each essential element of the claim

in question.” Id. § 27.005(c). In making this determination, we consider the pleadings and

any supporting and opposing affidavits. Lipsky, 460 S.W.3d at 587.

B. Aguilar’s Prima Facie Burden

In his pleading, Aguilar alleges that Izaguirre’s statement that she fired him is

slanderous per se because the statement accused him of lacking the necessary skills for

the proper conduct of irrigation manager. However, courts have consistently held that

stating someone was terminated or fired from his position, without more, does not rise to

actionable defamation. See Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.—

Houston [1st Dist.] 1992, writ dism’d w.o.j.) (finding the statement that an employee was

fired for reasons relating “solely to work performance” was nonspecific and was not

capable of defamatory meaning); see also Henriquez v. Cemex Mgmt, Inc., 177 S.W.3d

241, 252 (Tex. App.—Houston [1st Dist.], 2005 pet. denied) (“[T]hese statements did not

contain specific reasons as to why Henriquez was being fired. Thus, they cannot be

considered defamatory as a matter of law.”); Ferguson v. Hilton Hotels Corp., No. CIV.A.

H–09–4114, 2011 WL 1485680, at *7 (S.D. Tex. Apr. 19, 2011) (“Any statements that

8 Hilton made to the EEOC about Ferguson being fired were not capable of defamatory

meaning because a statement that an employee was fired based on work performance is

nonspecific and not reasonably capable of defamatory meaning.”).

For example, in Bedford, the supreme court stated that “[d]isparagement of a

general character, equally discreditable to all persons, is not enough [to be defamatory]

unless the particular quality disparaged is of such a character that it is peculiarly valuable

in the plaintiff’s business or profession.” 520 S.W.3d at 905. That logic applies here as

well. Izaguirre’s statement that she “had to fire Aguilar” does not suggest some wrongful

or unethical conduct by Aguilar, and it does not accuse Aguilar of lacking a peculiar or

unique skill that is necessary to be the general manager of a water district. See id.;

Hancock v. Variyam, 400 S.W.3d 59, 67 (Tex. 2013) (“[T]he proper inquiry is whether a

defamatory statement accuses a professional of lacking a peculiar or unique skill that is

necessary for the proper conduct of the profession”); San Antonio Express News v.

Dracos, 922 S.W.2d 242, 248 (Tex. App.—San Antonio 1996, no writ) (statement that

employee “walked off the job . . . without any excuse” is not defamatory because it does

not suggest he did anything illegal or unethical). Thus, the statement cannot cause injury

to Aguilar’s profession. See Moore, 166 S.W.3d at 384.

Although Aguilar may find Izaguirre’s statement that she fired him insulting and

offensive, “the statement lacks the element of disgrace or wrongdoing necessary” for

defamation. Means v. ABCABCO, Inc., 315 S.W.3d 209, 215 (Tex. App.—Austin 2010,

no pet.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d

9 345, 356 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (“To qualify as defamatory,

a statement should be derogatory, degrading, somewhat shocking, and contain elements

of disgrace.”). Construing Izaguirre’s statement as a whole, in light of the surrounding

circumstances, based on how a person of ordinary intelligence would perceive the entire

statement, we hold that the statement is neither disparaging nor defamatory.3 We sustain

Izaguirre’s first issue.

IV. ATTORNEY’S FEES

Because we concluded that Aguilar did not provide “clear and specific” evidence

of his claim for defamation, the trial court should have granted Izaguirre’s motion to

dismiss under the TCPA. The trial court shall therefore award Izaguirre “court costs,

reasonable attorney’s fees, and other expenses incurred in defending against the legal

action as justice and equity may require.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a).

Having sustained Izaguirre’s issue after determining that she was entitled to dismissal

under the TCPA, we remand this case to the trial court for a determination of costs,

attorney’s fees and other expenses, if any, as authorized under § 27.009(a). See Bedford,

520 S.W.3d at 906 (reversing judgment as to the libel claim and remanding to the trial

court with instructions to dismiss the libel claim and award attorney’s fees under the

TCPA); Schimmel v. McGregor, 438 S.W.3d 847, 862 (Tex. App.—Houston [1st Dist.]

3 Moreover, accusing someone of doing that which they had the right to do is not defamatory. Aguilar merely accuses Izaguirre of doing that which the board was legally entitled to do and planned on doing at the special board meeting—end Aguilar’s employment with HCID. See Means v. ABCABCO, Inc., 315 S.W.3d 209, 214 (Tex. App.—Austin 2010, no pet.) (“Thus, it is not defamatory to accuse a person of doing that which he has a legal right to do.”); Associated Press v. Cook, 17 S.W.3d 447, 456 n. 8 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“[E]xercising a legal right is not defamatory as a matter of law.”).

10 2014, pet. denied) (holding that the proper disposition when the trial court erroneously

denies a dismissal under the TCPA is to reverse and remand for § 27.009(a) award).

V. CONCLUSION

We reverse the trial court’s order denying Izaguirre’s motion to dismiss and remand

the case to the trial court to order dismissal of Aguilar’s suit and for further proceedings

relating to Izaguirre’s attorney’s fees, costs, and expenses.

JAIME TIJERINA Justice

Delivered and filed on the 25th day of February, 2021.