AFFIRM; and Opinion Filed August 15, 2016.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00353-CV
MANSIK & YOUNG PLAZA LLC, YOUNG HO KIM, SUN HUI KIM, AND DAVID KIM, Appellants V. K-TOWN MANAGEMENT, LLC D/B/A KTN US, IP INVESTMENTS, LTD., ODES H. KIM, JI HONG PARK, AND CHUL SEUNG PARK, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-12729
MEMORANDUM OPINION Before Justices Lang-Miers, Brown, and Schenck Opinion by Justice Brown Appellants Mansik & Young Plaza, LLC (Mansik & Young), Young Ho Kim, Sun Hui
Kim, and David Kim sued appellees K-Town Management, LLC d/b/a KTN US (KTN US), IP
Investments, LTD., Odes H. Kim, Ji Hong Park, and Chul Seung Park for libel following the
publication of four articles in a weekly Korean newspaper. The trial court granted appellees’
motion to dismiss under the Texas Citizens Participation Act (TCPA). In this appeal, appellants
contend the trial court erred in dismissing their claims because the TCPA does not apply and
because they established a prima facie case of libel and erred in denying their motion for limited
discovery. For the following reasons, we affirm the trial court’s order of dismissal. BACKGROUND
According to appellants’ pleadings, in 2008, appellant Mansik & Young purchased a
46,000 square foot office building in Dallas known as the Crown Plaza building. The other
appellants, Young Ho Kim, his wife Sun Hui Kim, and his brother David Kim, are members of
Mansik & Young. Young Ho Kim is very well known in the Texas Korean community, as well
as in the national Korean community and in South Korea. He is the Chairman of the Federation
of Korea Associations USA and former President of the Dallas Korean American Society. In
May 2014, a real estate broker approached Young Ho Kim about selling the Crown Plaza
building to the Korean Cultural Center of Dallas (KCCD) to be used to establish a center for the
North Texas Korean community. Young Ho Kim agreed to sell the building to the KCCD for
$1.5 million. The sale would result in a financial loss to Mansik & Young, but Mansik & Young
was willing to sell as a donation to the KCCD. This agreement was later terminated, but the
parties reached a second agreement for the sale of the building for the same price. The sale was
scheduled to close in November 2014.
Appellee KTN US publishes a weekly newspaper, Korean Town News, in Dallas for the
Korean community. The publication also appears online. Appellee Odes Kim is the owner and
publisher of KTN US, appellee Ji Hong Park is its president, and appellee Chul Seung Park is its
editor. In four consecutive issues in September and October 2014, KTN US published a series of
articles about the proposed sale of Mansik & Young’s building to the KCCD. The articles were
written and published in Korean. English translations of the articles were filed with the trial
court. The first article is attributed to Chul Seung Park, and the other three are attributed to a
“special reporting team.” Each article included at least one photograph of the building or the
surrounding location.
–2– In late October 2014, after publication of the fourth article, appellants sued appellees for
libel, asserting the articles contained defamatory statements. Appellants alleged that appellees
wanted to stop the sale of the Crown Plaza building to the KCCD so that appellee IP Investments
could sell the KCCD its own building. In the factual background section of their petition,
appellants listed specific statements that they asserted constituted libel per se.
Appellees filed an answer generally denying appellants’ allegations and asserting special
exceptions and affirmative defenses. They asserted that public funds were being raised to
purchase the cultural center. Appellees later filed a motion to dismiss all of appellants’ claims
under the TCPA, asserting they were sued in retaliation for publishing the articles. Appellants
filed a response to the motion to dismiss and attached various exhibits to the response. A few
days before the hearing on the motion, appellants filed an emergency motion to take the
deposition of appellee Chul Seung Park, the editor of KTN US, and moved to continue the
motion to dismiss. At the hearing, appellees’ attorney made the uncontroverted statement that
the sale of the building had gone through as planned. The trial court denied appellants’ request
for discovery and granted appellees’ motion to dismiss. The court’s order dismissed appellants’
claims with prejudice and awarded attorney’s fees to appellees. This appeal followed.
Before addressing appellants’ issues, we first summarize the four articles as follows:
1. September 26, 2014 article: “Korean Community, Professionals, and Others Calling Our Office for Complaining Angry with ‘Exclusion of Fairness, Clarity’”
The first article referred to appellants but does not mention them by name. It stated that
Koreans have become increasingly worried since the announcement of the building selection for
the KCCD. The newspaper had received “continuous phone calls of complaints with a kind of
indication of, ‘It’s a kind of deception of Koreans by a tactics of trying to reduce the burden of
rental fees for KSD [Korean Society of Dallas] office and by a card game in which the building
owner was colluded in a ‘Go-stop’ game.” The article indicated that callers are worried about –3– future operational problems caused by purchasing the building with a loan and operating with the
building rental income. It stated, “Accordingly, KTN (Korea Town News) will review the
impropriety as well as the possible future problems of the building, future operation and
maintaining the ownership of the building contracted for the Korean Cultural Center of Dallas.”
The article gave the opinions of four specific people, one who wished to remain
anonymous and three identified by only one initial, who were unhappy with the building
selection. The anonymous person had participated in fundraising for the building, but was
“regretting very much and strongly denouncing the Promotion Committee’s purchase of the
building.” Mr. K, an experienced building inspector, was completely disappointed in the
building site. He listed numerous problems with the building, including “loan, . . . resale or asset
value 0, [u]nder the highway, . . . few parking spaces, internal structure, . . . feels like a haunted
one. Mr. K was also of the opinion that the “poongsu condition” was “like building a house on a
running water.” (According to the pleadings, poongsu is a Korean term for bad karma.) Mr. K
also stated “looks like cheating Koreans.” Mr. L, who had an angry voice on the phone, asked,
“Do you know who is the owner of the Crown Plaza building?” He added that the “registered
names are the brothers, the Senior Vice-chair of Korean Society of Dallas (KSD) and the
Chairman of the board of directors of the Federation of Korean Society in US (FKSUS).”
According to Mr. L, it is a collusion between those representatives of the KSD and the FKSUS.
He noted the contract was rapidly done as the price was very low. He also stated that the Crown
Plaza building was known as problematic due to “renting was not going well.” Mr. L stated that
others shared his opinion that “a real suspicious unclear reason existed” for selecting this
building. Mr. P could not calm his rage because he saw the building had no value for resale or as
an asset. He expressed concern that it would be difficult to make the payment for the bank loan
with the rental income, especially since it was proposed some of the office space would be
–4– converted into cultural center space. Mr. P also thought the City would never allow the proposed
10,000 square foot auditorium due to safety concerns.
The article also stated that, according to the North Texas Korean Journalists Association,
it was a “very regrettable thing the Promotion Committee made a purchase based on a cheap
price and with a bank loan.” The association proposed forming an “Operation Committee” of the
cultural center of fair objective people to operate “against a one-way decision by the KSD or the
Promotion Committee.”
2. October 3, 2014 article: “Crown Plaza Appraisal Value $1.3 Million”
This article stated that after the newspaper published the first article in the series
“meaningful phone calls of Koreans are continuing daily.” It noted that Mr. Lim had researched
the property on the Dallas County Appraisal District’s website. He entered the owner’s name
“mansik” on the website. Lim learned that Mr. Young Ho Kim bought the building in 2009 for
$1.8 million and in 2010 the value dropped to $1.3 million. If the purchase price is $1.5 million
as reported, Kim sold the building for $200,000 more than its appraised value and “the
Promotion Committee purchased higher price with the public money and loan, and then, isn’t it
giving damage to the Koreans?” Mr. Lim referenced other potential building sites and asked,
“why purchase the Crown Plaza building with $1.5 million?” According to Mr. Lim, the deal
could not have happened “unless it is collusion between the owner and the buyer.”
KTN US asked a Korean real estate broker to evaluate the deal. The broker said it would
be “OK” to see the building’s appraisal value as the actual dealing price due to its secluded
location and rentals not doing well. He could not understand why “they claimed $150,000 lower
cost whereas $200,000 higher than the county appraisal.” 1 It is customary for a building in bad
condition to sell for less than the tax value. A Korean real estate developer told the newspaper
1 The fourth article indicated that the owner of the building had received an offer of $1.65 million for the building.
–5– that the building was constructed in 1971 and it may cost $700,000–800,000 to modify it for the
center’s use. Another “informant” asked, “who is going to give the building to Korean
community where one can get $150,000 more, and the Korean community is being enticed by a
few guys who play Go-stop Card Game.”
The final paragraphs of the article refer to the various suspicions of those protesting
against the “irresponsible contract for the building with the money collected from Korean
community.” One person said the contract was “full of suspicion from one to ten.” Those
suspicions included: the hurried nature of the contract, the fact that no realtor or attorney was
hired for the purchase and sale of a $1.5 million building, the lack of a detailed professional
inspection of the building, and a $100,000 non-refundable condition. 2 The article also stated it is
impossible to modify the space for a 10,000 square foot performance hall based on the current
number of parking spaces.
The article mentioned that the next article in the series would be on “Improper Selection
of Location.” It listed a phone number and stated, “We are gathering information and critiques
related to this matter from knowledgeable Koreans without fear.”
3. October 10, 2014 article: “The Worse Approach Secluded Location ‘Traffic Hell’”
This article did not mention the owner of the building by name or otherwise. It stated
that an increasing number of Koreans are expressing their “Uncomfortable Feelings” for the
purchase of the cultural center building. Opposition is strong among “old timers” against the
“thoughtless action of the Promotion Committee as it disrespected the Korean community.”
“With the money Korean community gave to and relied on them, they bought an old and
secluded area building, and increasing number of people are saying that the reason is not
understandable at all.”
2 The second contract for the sale of the building required the buyer to pay a nonrefundable earnest money deposit of $100,000.
–6– The article included the opinions of “Mr. J so and so.” He was angry with the Promotion
Committee and unhappy with the idea of making payments for the building from the rental
income. He thought that if a performance hall was created in the building, there would be “red
ink” even if the rest of the space was rented out. Mr. J also expressed concern with the age of
the building, the traffic conditions near it, and the inadequate number of parking spaces to
support a performance hall.
KTN US’s reporting team visited the Crown Plaza building. The article noted the one-
lane roads to the building. It stated that if lots of Koreans gathered there for a wedding, birthday
celebration, or other cultural event, it would be an “unimaginable traffic hell.”
The closing section of the article had the subtitle “The Decision of the Building with
‘Worst Condition’ Hid.” It reported that the Promotion Committee publicly announced only “the
aspect of cheap building” during a press conference. Other building conditions were “behind the
scene.” A real estate developer and a building construction professional insisted that the
committee’s emphasis on the cheap cost of the building was to cover the bad intention of hiding
the building’s problems. The newspaper conducted a questionnaire about the building, and over
90% of the people who responded were worried about the “unclear process” by the Promotion
Committee.
4. October 17, 2014 article: “Building Purchase with Full of Suspicion ‘Who’s Responsible for Maintenance Cost’”
This article reported that at a press conference the co-chairs of the Promotion Committee
said the building’s owner gave the building to the Korean community for $1.5 million even
though there was another offer of $1.65 million. A caller to the newspaper who identified
himself as an experienced dealer of buildings in Dallas said that “this talk” is a “Colluded Go-
stop Card Game.” He indicated that although the building’s current appraisal value is $1.3
million, in the market “it would be difficult to deal even in $800,000.” The caller “proved –7– $800,000 is the current market price” for the building by deducting taxes, insurance, utilities,
repairs, and cleaning costs from the annual income generated by the building and applying the
capitalization rate. However, if the KCCD modifies the building to include public space such as
a performance hall, “talking of income is nonsense.”
The article reported that the three members of the KCCD’s board of directors should have
been making decisions regarding the center’s building. Instead, the members of the Promotion
Committee decided everything. The co-chairs of the committee included the President of the
KSD and its Chairman. As such, it looks like the KSD is controlling the committee.
“Mr. J so and so,” a professional realty dealer, said that even buildings with better
locations and environments are having difficulty renting. He knew of “lots and lots” of buildings
available for $20 per square feet. Mr. J said he knew the Kim brothers bought the building in
April 2008 for $1.8 million. Mr. J denounced the deal, asking how can one trust it without any
broker?
Readers of the paper who had visited the building continued to complain. A housewife
who had made a donation to the fund felt the committee had betrayed her. A donut store owner
said he was suspicious the moment he heard the KCCD purchased the building. The final
sentence of this final article in the series called for the committee to “do the best to clear the
suspicion without any doubt in front of the Korean community.”
APPLICABILITY OF THE TCPA
We turn to appellants’ first issue in this appeal, which is whether appellees met their
initial burden to show the TCPA applies. The stated purpose of the TCPA is 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.
–8– CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2015); see In re Lipsky, 460 S.W.3d 579, 589
(Tex. 2015) (purpose is to summarily dispose of lawsuits designed only to chill First Amendment
rights). To promote these purposes, the TCPA provides a means for the expedited dismissal of
unmeritorious suits that are based on, related to, or in response to a party’s exercise of its right of
free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(a); Pickens v. Cordia, 433 S.W.3d 179, 183 (Tex. App.—Dallas 2014, no pet.).
To prevail on a motion to dismiss, the movant bears the initial burden to show by a
preponderance of the evidence that the action is based on, relates to, or is in response to the
party’s exercise of the right of free speech. Id. § 27.005(b). The “exercise of the right of free
speech” is broadly defined as “a communication made in connection with a matter of public
concern.” 3 Id. § 27.001(3). A matter of public concern includes an issue related to: 1) health or
safety; 2) environmental, economic, or community well-being; 3) the government; 4) a public
official or public figure; or 5) a good, product, or service in the marketplace. Id. § 27.001(7); see
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
If the movant satisfies the burden to show the TCPA applies, the trial court must dismiss
the lawsuit unless the plaintiff establishes by clear and specific evidence a prima facie case for
each essential element of the claim in question. Id. § 27.005(c). Even if the plaintiff meets this
burden, the court must still dismiss the lawsuit if the movant establishes by a preponderance of
the evidence each essential element of a valid defense. Id. § 27.005(d). In determining whether
to grant or deny a motion to dismiss, the court shall consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability or defense is based. Id. § 27.006(a).
We review de novo the trial court’s determinations that the parties met or failed to meet their
3 “Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1).
–9– burdens of proof under section 27.005. D Magazine Partners, L.P. v. Rosenthal, 475 S.W.3d
470, 479–80 (Tex. App.—Dallas 2015, pet. granted).
Appellants contend appellees failed to establish that the articles were matters of public
concern. In their motion to dismiss, appellees asserted that the articles involved a matter of
public concern because the KCCD is devoted to the well-being of the Korean community in
North Texas and the KCCD’s purchase of the building may be deleterious to the Korean
community. Appellants argue that the article was about a private business transaction between
private parties. We agree with appellees. The articles at issue were about the proposed sale of
an office building to the KCCD for use as a community center. Further, the KCCD was to
purchase the building in part with funds raised by the public. Appellants’ own pleadings assert
that Young Ho Kim was willing to sell the building to the KCCD because it would benefit all
Koreans in North Texas. We conclude the articles related to the community well-being and thus
involved a matter of public concern. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7). We
overrule appellants’ first issue.
PRIMA FACIE CASE
Because appellees met their initial burden, appellants then bore the burden to establish by
“clear and specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c). In their third issue, appellants contend the trial court erred in
dismissing their claims because they presented clear and specific evidence establishing a prima
facie case for each element of their libel claim. Id. § 73.001 (West 2011) (elements of libel).
Prima facie evidence is the “minimum quantum of evidence necessary to support a rational
inference that the allegation of fact is true.” In re Lipsky, 460 S.W.3d at 590 (quoting In re E.I.
DuPont du Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)).
–10– Appellants contend the statements at issue constitute libel per se. Libel is defamation
expressed in written or other graphic form. TEX. CIV. PRAC. & REM. CODE ANN. § 73.001. Libel
tends to injure a living person’s reputation and thereby expose the person to public hatred,
contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue or
reputation. Id.; Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013). Defamation’s elements
include: 1) the publication of a false statement of fact to a third party, 2) that was defamatory
concerning the plaintiff, 3) with the requisite degree of fault, and 4) damages, in some cases. In
re Lipsky, 460 S.W.3d at 593. The status of the person allegedly defamed determines the
requisite degree of fault. A private individual need only prove negligence, whereas a public
figure or official must prove actual malice. Id. Finally, the plaintiff must plead and prove
damages, unless the statements are defamatory per se. Id.
The common law distinguishes defamation claims as either per se or per quod. Id. at 596.
Defamation per se refers to statements that are so obviously harmful that general damages, such
as mental anguish and loss of reputation, are presumed. Id. If the court must resort to innuendo
or extrinsic evidence to determine that a statement was defamatory, then it is libel per quod.
Meisel v. U.S. Bank, N.A., 396 S.W.3d 675, 680 (Tex. App.—Dallas 2013, no pet.). Defamation
per se is broken down into separate categories of falsehoods. For example, accusing someone of
a crime, of having a foul or loathsome disease, of engaging in serious sexual misconduct, or
remarks that adversely reflect on a person’s fitness to conduct his business or trade are deemed
defamatory per se. In re Lipsky, 460 S.W.3d at 596. Whether a statement qualifies as
defamation per se is generally a question of law. Id.
In their pleadings and their response to the motion to dismiss, appellants pointed to the
following allegedly false statements in the articles they maintain are defamatory per se:
1. Contract was rapidly done as the price was very low.
–11– 2. Crown Plaza Appraisal Value $1.3 Million.
3. The price Mr. Young Ho Kim bought in 2009 was $1.8 million and from 2010 it dropped to $1.3 million and it continues up today.
4. But according to the news media, the purchase price of $1.5 million was contracted and it was announced cheaper than the current price in the press conference. If the posted price is correct, then, Mr. Young Ho Kim sold it $200,000 higher.
5. And the Promotion Committee purchased higher price with the public money and loan, and then, isn’t it giving damage to the Koreans?
6. Their claim is that if there was no realtor or attorney hired for such purchase and selling of $1.5 million worth building, those handlers had given up their trust themselves.
7. An unidentified caller purports to analyze the financial statement of Crown Plaza and determined that “$800,000 is the current market price.”
8. The current appraisal value is $1.3 million, but in the market he firmly said it would be difficult to deal even in $800,000.
9. Crown Plaza’s current income of $12,000 per month.
Appellants contend that at least some of these statements are so obviously injurious to a
plaintiff’s reputation that they require no proof of injury. But the majority of these statements
concern the value of the building, not appellants. There are statements about the appraisal value
of the building, the purchase price, and its market value. The statements indicate the sales price
was greater than the appraisal value of the building and greater than its market value. The
articles also mentioned the income the building generated from tenants and questioned whether
that amount would be sufficient to make the loan payments. Other statements involve the
contract. Appellants rely on statements the contract was rapidly done and done without a realtor.
The statement that mentions the Promotions Committee suggests that the KCCD was “giving
damage to Koreans” by selecting the Crown Plaza building to purchase. A few other statements
are set out in appellants’ brief, such as statements that the building had bad poongsu and was
worthless. At best, the statements indicate Mansik & Young was profiting from the sale of the
–12– building to the KCCD, when it claimed to be losing money on the sale, and the building was not
a good choice for the KCCD. The statements appellants have alleged to be false and defamatory
do not fall into any of the categories that are considered libel per se. They fall short of accusing
any appellant of a crime or adversely reflecting on one’s fitness to conduct his business. See,
e.g., Watson v. Hardman, No. 05-15-01355-CV, 2016 WL 3626091, at *5–7 (Tex. App.—Dallas
July 6, 2016, no pet. h.) (statements accusing plaintiffs of stealing publicly solicited charitable
funds were defamation per se); Shamark Smith Ltd. P’ship v. Longoria, 03-14-00698-CV, 2016
WL 1039003, at *2 (Tex. App.—Austin Mar. 11, 2016, no pet.) (mem. op.) (statement that
business owner, who had done work on building owned by other parties, had stolen components
or contents of the building accused business owner of crime and adversely reflected upon his
fitness to conduct his business); Bennett v. Comput. Assocs. Int’l, 932 S.W.2d 197, 200 (Tex.
App.—Amarillo 1996, pet. denied) (statement that plaintiff was thief and crook who had stolen
computer software fell within parameters of slander per se). The statements are not so obviously
harmful that general damages can be presumed and thus do not amount to libel per se. 4 Even if
the statements could be considered libel per quod, appellants have not attempted to establish a
prima facie case for the element of damages in their libel claim. See Bedford v. Spassoff, 485
S.W.3d 641, 653 (Tex. App.—Fort Worth 2016, pet. filed).
In their brief, appellants acknowledge that in isolation some of the statements may not be
actionable. But they assert the overall gist of the articles was false. A publication’s gist is its
main point, material part, or essence, as perceived by a reasonable person. Tatum v. The Dallas
Morning News, Inc., No. 05-14-01017-CV, 2015 WL 9582903, at *10 (Tex. App.—Dallas Dec.
30, 2015, pet. filed). Appellants contend the gist of the articles was that the Kim parties took
4 To their response to the motion to dismiss, appellants also attached a list of sixty-one “Innuendos” from the articles. By their nature, innuendos do not amount to libel per se. See Meisel, 396 S.W.3d at 680.
–13– advantage of KCCD by selling it a cheap and damaged property at a price in excess of market
value or appraised value.
Texas law recognizes that a publication may be entirely true in its details, yet still convey
a substantially false and defamatory impression by omitting material facts or suggestively
juxtaposing them. Main v. Royall, 348 S.W.3d 381, 393 (Tex. App.—Dallas 2011, no pet.). In
other words, the law permits liability for a publication that gets the details right but fails to put
them in the proper context and thus gets the gist of story wrong. See Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 115 (Tex. 2000). When a plaintiff alleges that the gist of a publication
defamed him, we construe the allegedly defamatory publication as a whole in light of the
surrounding circumstances and based upon how a person of ordinary intelligence would perceive
it. Main, 348 S.W.3d at 393.
Here, appellants have not properly raised a gist claim. See id. at 394. In their petition,
they alleged appellees published defamatory statements that were false. Their pleading sets out
specific statements from the articles they contend amount to libel per se. Appellants did not
plead that the gist of publication was false or make this assertion in their response to appellees’
motion to dismiss or even at the hearing on the motion. Cf. Turner, 38 S.W.3d at 113 (court
rejected defendant’s argument that plaintiff waived theory that broadcast as a whole defamed
him where pleadings alleged “the gist of the broadcast is substantially false and defamatory”).
They used the term “gist” for the first time in their appellate brief. We have examined the
allegedly false statements and conclude that appellants have not established a prima facie case of
libel. 5 We conclude the trial court did not err in granting appellees’ motion to dismiss. We
overrule appellants’ third issue.
5 Appellants also pleaded causes of action for business disparagement, slander of title, civil conspiracy, tortious interference with a contract, tortious interference with prospective relations, piercing the corporate veil of KTN US and IP Investments, and declaratory relief. In their brief, appellants do not assert that they established a prima facie case with respect to the elements of any of these other causes of action. They have
–14– APPELLANTS’ MOTION FOR LIMITED DISCOVERY
In their second issue, appellants contend the trial court erred in denying their motion
seeking limited discovery. About a month after appellees moved to dismiss under the TCPA, on
February 12, 2015, appellants filed an emergency motion requesting permission to take the
deposition of appellee Chul Seung Park, the editor of KTN US. The motion asserted that Park
voluntarily requested a meeting with Young Ho Kim. Park met with Young Ho Kim and David
Kang the day before the motion was filed. During the meeting, Park expressed his guilt about
the articles and apologized repeatedly for writing them. He stated he was under a lot of pressure
to write articles about Young Ho Kim personally. Park told Young Ho Kim he had submitted his
resignation because he could not deal with the pressure Odes Kim was putting on him to write
articles about Young Ho Kim. Appellants attached to their emergency motion affidavits from
Young Ho Kim and David Kang with testimony about the meeting.
The filing of a motion to dismiss under the TCPA typically suspends all discovery until
the court rules on the motion. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(c); Greer v.
Abraham, 489 S.W.3d 440, 443 (Tex. 2016). When good cause exists, however, the TCPA
permits limited discovery relevant to the motion. TEX. CIV. PRAC. & REM. CODE ANN. §
27.006(b); Greer, 489 S.W.3d at 443. We review an order denying a party’s request for
discovery under the TCPA for an abuse of discretion. Walker v. Schion, 420 S.W.3d 454, 458
(Tex. App.—Houston [14th Dist.] 2014, no pet.).
Appellants describe Park as “the most important witness” and assert his deposition would
have shown the intent behind the articles as well as whether there was any investigation done and
whether there were real sources. They maintain they demonstrated good cause because the
information sought was material and its necessity was not the result of their intentional or
therefore not challenged the trial court’s dismissal of their other claims. See Wholesale TV & Radio Advert., LLC v. Better Bus. Bureau of Metro. Dallas, Inc., No. 05-11-01337-CV, 2013 WL 3024692, at *4–5 (Tex. App.—Dallas June 14, 2013, no pet.) (mem. op.).
–15– indifferent conduct. Further they assert no harm or undue delay would befall appellees as a
result of a short continuance.
When it considered the motion to dismiss, the trial court had before it the affidavits of
Young Ho Kim and Kang detailing what Park said in the meeting. The court could have
concluded this evidence provided sufficient information for purposes of determining the motion
to dismiss and that further discovery was not needed. We cannot say the trial court abused its
discretion in denying the request to take Park’s deposition.
Further, we have determined that the statements appellants contends are defamatory are
not of such a nature that they amount to libel per se. Our disposition of this appeal therefore
does not depend on whether appellants produced evidence of the intent behind the publication of
the articles. The request for the deposition is therefore moot. See Bilbrey v. Williams, No. 02-
13-00332-CV, 2015 WL 1120921, at *15 (Tex. App.—Fort Worth Mar. 12, 2015, no pet.) (mem.
op.); Walker, 420 S.W.2d at 458–59 (inability to obtain testimony on element of malice was
immaterial where plaintiff did not have evidence of other elements of his defamation claim). We
overrule appellants’ second issue.
We affirm the trial court’s order of dismissal.
/Ada Brown/ ADA BROWN JUSTICE
150353F.P05
–16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MANSIK & YOUNG PLAZA LLC, On Appeal from the 193rd Judicial District YOUNG HO KIM, SUN HUI KIM AND Court, Dallas County, Texas DAVID KIM, Appellants Trial Court Cause No. DC-14-12729. Opinion delivered by Justice Brown, Justices No. 05-15-00353-CV V. Lang-Miers and Schenck participating.
K-TOWN MANAGEMENT, LLC D/B/A KTN US; IP INVESTMENTS, LTD.; ODES H. KIM; JI HONG PARK, AND CHUL SEUNG PARK, Appellees
In accordance with this Court’s opinion of this date, the trial court’s order of dismissal is AFFIRMED.
It is ORDERED that appellees K-TOWN MANAGEMENT, LLC D/B/A KTN US; IP INVESTMENTS, LTD.; ODES H. KIM; JI HONG PARK, AND CHUL SEUNG PARK recover their costs of this appeal from appellants MANSIK & YOUNG PLAZA LLC, YOUNG HO KIM, SUN HUI KIM AND DAVID KIM.
Judgment entered this 15th day of August, 2016.
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