Full Opinion (html_with_citations)

                         NUMBER 13-22-00261-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


JESUS CASTILLO,                                                         Appellant,

                                            v.

COASTAL BEND CANCER CENTER,                                              Appellee.


               On appeal from the County Court at Law No. 1
                        of Nueces County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Contreras and Justices Longoria and Silva
                Memorandum Opinion by Justice Silva

      Appearing pro se, appellant Jesus Castillo challenges the trial court’s Rule 91a

dismissal of his defamation suit against appellee Coastal Bend Cancer Center (CBCC).

See TEX. R. CIV. P. 91a. We affirm.
                                    I.     BACKGROUND

       On February 3, 2022, Castillo filed a lawsuit setting forth a single cause of action

of defamation. Castillo alleged that CBCC had defamed him by identifying him as “ugly

and rude to all [s]taff members” and declining to accept him as a patient on this basis.

Castillo’s petition did not specify the means by which the alleged defamatory statement

was published. CBCC’s timely original answer and general denial followed. On March 14,

2022, CBCC filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a,

asserting that Castillo’s claim has “no basis in law or fact” because he failed to plead facts

that could support every element of his claim for defamation. See id. On the same day,

Castillo filed a motion for summary judgment.

       In response to CBCC’s motion, Castillo identified the alleged defamatory statement

as CBCC’s characterization of him as being “rude and ugly with all staff member[s]”;

asserted that the statement was untrue “because [it] is impossible that [he] can be rude

and ugly with the [sic] all dozens of [CBCC’s] staff member[s]”; and claimed the statement

injured him because it was “[e]mbarrassing to a bunch of third persons” and affected his

reputation and ability to promptly receive medical care. The trial court held two hearings

on the parties’ motions before granting CBCC’s Rule 91a motion and dismissing the suit.

This appeal followed.

                                     II.    DISCUSSION

       Rule 91a governs the dismissal of baseless causes of action and provides that “[a]

cause of action has no basis in law if the allegations, taken as true, together with

inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”

TEX. R. CIV. P. 91a.1. We perform a de novo review of a trial court’s ruling on a Rule 91a

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motion to dismiss. San Jacinto River Auth. v. Medina,
627 S.W.3d 618
, 628 (Tex. 2021);

see In re Farmers Tex. Cnty. Mut. Ins.,
621 S.W.3d 261
, 266 (Tex. 2021) (orig.

proceeding) (“[W]hether a defendant is entitled to dismissal under the facts alleged is a

legal question.”).

       In ruling on a Rule 91a motion, the trial court “must decide the motion based solely

on the pleading of the cause of action, together with any pleading exhibits permitted by

the rules of civil procedure.” Reaves v. City of Corpus Christi,
518 S.W.3d 594, 599
 (Tex.

App.—Corpus Christi–Edinburg 2017, no pet.); see San Jacinto River Auth., 627 S.W.3d

at 628. “To survive a Rule 91a challenge to its pleadings, a plaintiff must make more than

‘threadbare recitals of the elements of his cause of action, supported by mere conclusory

statements.’” 1st & Trinity Super Majority, LLC v. Milligan, No. 08-20-00230-CV,
2022 WL 2759049
, at *7 (Tex. App.—El Paso July 14, 2022, no pet.) (quoting Ruth v. Crow, No.

03-16-00326-CV,
2018 WL 2031902
, at *5 (Tex. App.—Austin May 2, 2018, pet. denied)

(mem. op.)). With these principles in mind, we examine the elements of Castillo’s sole

cause of action: defamation.

       Defamation is a tort that may occur orally (slander) or in written or graphic form

(libel). Dall. Morning News, Inc. v. Tatum,
554 S.W.3d 614
, 623–24 (Tex. 2018); see TEX.

CIV. PRAC. & REM. CODE ANN. § 73.001 (defining “libel” as “defamation expressed in

written or other graphic form that 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”). To establish a claim for

defamation, a plaintiff must allege and prove as follows: (1) a statement of fact to a third

party was publicized; (2) the statement concerned him and was defamatory; and (3) as

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relevant here, the statement was made with negligence. Dall. Morning News, Inc. v. Hall,
579 S.W.3d 370, 377
 (Tex. 2019); In re Lipsky,
460 S.W.3d 579, 593
 (Tex. 2015) (orig.

proceeding) (explaining that the requisite degree of fault element turns on whether the

person allegedly defamed is a private individual or a public figure, and a private individual

need only prove negligence). The plaintiff must also plead and prove damages unless the

statements at issue are defamatory per se—that is, the statements “are so obviously

harmful that general damages may be presumed.” In re Lipsky,
460 S.W.3d at 593
; see

also Pension Advisory Grp., Inc. v. Fid. Sec. Life Ins. Co., No. 13-18-00620-CV,
2020 WL 1181256
, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 12, 2020, no pet.) (mem. op.).

“[C]ommunication that is merely unflattering, abusive, annoying, irksome, or

embarrassing, or that only hurts a person’s feelings, is not actionable.” MVS Int’l Corp. v.

Int’l Advert. Sols., LLC,
545 S.W.3d 180, 202
 (Tex. App.—El Paso 2017, no pet.); see

Chehab v. Edgewood Dev., Ltd.,
619 S.W.3d 828
, 836 (Tex. App.—Houston [14th Dist.]

2021, no pet.); see also Mazaheri v. Tola, No. 05-18-01367-CV,
2019 WL 3451188
, at *2

(Tex. App.—Dallas July 31, 2019, pet. denied) (mem. op.). Publication, for purposes of a

defamation suit, occurs when the statement is “communicated to a third person who is

capable of understanding its defamatory meaning and in such a way that the person did

understand its defamatory meaning.” Buckingham Senior Living Cmty., Inc. v.

Washington,
605 S.W.3d 800
, 809 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

       Castillo’s claim for defamation is premised on CBCC’s identification of him as “rude

and ugly to all [s]taff members.” Even if we construed such statement as an objectively

verifiable fact—rather than an opinion—Castillo’s petition does not identify the

statement’s third-party recipient or address the manner or means of publication. See id.;

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Campbell v. Clark,
471 S.W.3d 615, 625
 (Tex. App.—Dallas 2015, no pet.) (“A statement

must assert an objectively verifiable fact, rather than an opinion, to be actionable.”). In

other words, Castillo’s pleading fails to allege facts necessary to support every element

of a defamation claim. See Hall,
579 S.W.3d at 377
. Thus, the trial court properly

dismissed Castillo’s claim under Rule 91a. See id.; see also Malik v. GEICO Advantage

Ins., No. 01-19-00489-CV,
2021 WL 1414275
, at *8 (Tex. App.—Houston [1st Dist.] Apr.

15, 2021, pet. denied) (mem. op.) (concluding trial court did not err in granting appellees’

motion to dismiss a defamation claim where the “petition alleges too few facts to

demonstrate a viable, legally cognizable right to relief”). We overrule Castillo’s issue on

appeal. 1

                                         III.     CONCLUSION

        We affirm the trial court’s judgment.

                                                                          CLARISSA SILVA
                                                                          Justice

Delivered and filed on the
22nd day of December, 2022.




        1  Castillo spends a significant portion of his appellate brief arguing the merits of his summary
judgment motion and CBCC’s failure to file a timely response. See generally TEX. R. CIV. P. 166a(i);
Draughon v. Johnson,
631 S.W.3d 81
, 87–88 (Tex. 2021) (“[T]he non-movant’s failure to answer or respond
cannot supply by default the summary judgment proof necessary to establish the movant’s right.” (quoting
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678
 (Tex. 1979))). In light of our conclusion
that the suit was properly dismissed pursuant to Rule 91a, to the extent this issue exists independent from
his Rule 91a arguments, this issue is moot and we do not address it. See TEX. APP. P. 47.1.

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