Azteca International Corporation D/B/A Azteca America, Stations Group, LLC, Northstar McAllen License, LLC, TV Azteca, S.A.B. De C v. Publimax, S.A. De C v. and Patricia Chapoy v. Gloria De Los Angeles Trevino Ruiz, Angel Gabriel De Jesus Trevino, and Armando Ismael Gomez Martinez

                 NUMBER 13-21-00241-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI – EDINBURG


AZTECA INTERNATIONAL CORPORATION
D/B/A AZTECA AMERICA, STATIONS
GROUP, LLC, NORTHSTAR MCALLEN
LICENSE, LLC, TV AZTECA, S.A.B. DE
C.V., PUBLIMAX, S.A. DE C.V. AND
PATRICA CHAPOY,                                          Appellants,

                                 v.

GLORIA DE LOS ANGELES TREVINO RUIZ,
ANGEL GABRIEL DE JESUS TREVINO,
AND ARMANDO ISMAEL GOMEZ MARTINEZ,                        Appellees.


            On appeal from the 139th District Court
                  of Hidalgo County, Texas.


                 MEMORANDUM OPINION

         Before Justices Longoria, Hinojosa, and Silva
          Memorandum Opinion by Justice Longoria
      Appellants Azteca International Corporation d/b/a Azteca America, Stations

Group, LLC, Northstar McAllen License, LLC, TV Azteca, S.A.B. de C.V., Publimax, S.A.

de C.V., and Patricia Chapoy appeal from the trial court’s “implicit denial” of their

combined motion for summary judgment and motion to dismiss pursuant to the Texas

Citizens Participation Act (TCPA). We affirm in part and reverse and render in part.

                                   I.     BACKGROUND

      This cause has been before this Court in a prior appeal. See TV Azteca, S.A.B. de

C.V. v. Trevino Ruiz, 

 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.).

We previously described the background and procedural history as follows:

      Appellee Gloria de los Angeles Trevino Ruiz (Trevi), a prominent Mexican
      recording artist, was arrested and jailed in Brazil and Mexico on sex-
      trafficking charges. After more than four years, Trevi was released in 2004
      when her charges were dismissed. Trevi then moved with her family to
      McAllen, Texas.

              On April 14, 2009, Trevi, individually and on behalf of her [then] minor
      child, [appellee Angel Gabriel de Jesus Trevino (Gabriel)], and appellee
      Armando Ismael Gomez Martinez [(Gomez)], Trevi’s husband, brought suit
      against appellants for defamation, libel per se, slander, defamation per se,
      business disparagement, civil conspiracy, and tortious interference with
      existing and prospective contracts and business relationships. Appellees
      based their petition on allegations that “in late 2008 to early 2009”
      appellants “aired or caused to be aired television programming” which
      contained “several defamatory statements about [Trevi].” Appellees alleged
      that appellants published and re-published “allegations from which [Trevi]
      had been exonerated.”

             Appellants TV Azteca, S.A.B. de C.V., Publimax, S.A. de C.V., and
      Chapoy (Mexican Azteca Parties) responded by filing special appearances
      in which they contested personal jurisdiction. The remaining appellants,
      Azteca International Corporation, Stations Group, LLC, and Northstar
      McAllen License, LLC (U.S. Azteca Parties), filed answers and special
      exceptions. After the filing of appellees’ fourth amended petition, the
      Mexican Azteca Parties filed special exceptions. The Mexican Azteca
      Parties and appellees entered into a Rule 11 agreement, that provided, inter

                                             2
       alia, that the special exceptions would be withdrawn and that the appellees
       would file a fifth amended petition with more specificity.

               Subsequently, appellees filed their fifth amended petition which
       identified twenty-two allegedly defamatory statements. Appellants filed a
       motion to dismiss pursuant to the [TCPA]. See TEX. CIV. PRAC. & REM. CODE
       ANN. § 27.003. The trial court denied the motion to dismiss.

Id. at 27. In the previous appeal, appellants asserted the trial court erred in not granting

their TCPA motion. See id. This Court found that of the twenty-two allegedly defamatory

statements pleaded in the fifth amended petition, the seven “newly pleaded” statements

(statements 1, 2, 8, 9, 12, 13, and 18) were alleged outside of the statute of limitations

(SOL) and should be dismissed. See id. at 33. As to the remaining fourteen statements

which had previously been pleaded in the fourth amended petition, we held that

appellants’ TCPA motion to dismiss was untimely. See id. at 31. As such, we reversed

the trial court’s denial of the TCPA motion as to the seven out-of-time statements and

remanded for further proceedings. See id. at 35–36.

       After our opinion issued, appellants filed a motion for summary judgment, which

was subsequently amended after responses and motions were filed. Appellees then filed

their sixth amended petition, in which they re-alleged the twenty-two statements from their

fifth amended petition and alleged nine newly pleaded allegedly defamatory statements.

Appellants filed their combined TCPA motion to dismiss the nine newly pleaded

statements and motion for summary judgment on all claims.

       Following a hearing, the trial court signed an order in which it stated:

       The Court finds as a matter of fact and concludes as a matter of law that
       there is good cause[,] and it is in the interests of justice to defer ruling on
       the [m]otion until the close of evidence at trial. Therefore, the [m]otion is


                                             3
      taken under submission and will be ruled on after the close of evidence at
      trial.

      It is from that order that appellants bring this interlocutory appeal.

                                   II.    JURISDICTION

      We first address appellees’ contention that this Court lacks jurisdiction over this

appeal because the trial court did not expressly deny appellants’ motion. Section 51.014

of the Texas Civil Practice and Remedies Code governs this interlocutory appeal, stating:

          (a) A person may appeal from an interlocutory order of a district court,
              county court at law, statutory probate court, or county court that:
          ....
              (6)   denies a motion for summary judgment that is based in whole
                    or in part upon a claim against or defense by a member of the
                    electronic or print media, acting in such capacity, or a person
                    whose communication appears in or is published by the
                    electronic or print media, arising under the free speech or free
                    press clause of the First Amendment to the United States
                    Constitution, or Article I, Section 8, of the Texas Constitution,
                    or Chapter 73;
              ....

             (12)   denies a motion to dismiss filed under Section 27.003[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6), (12). Appellees argue that no order

was entered denying appellants’ motion because the trial court deferred its ruling; thus,

no appeal could be taken from the order. Appellants respond that the trial court’s deferred

ruling on their motion until the close of evidence at trial was an implicit denial of the

motion.

      Similar to the purpose of a plea to the jurisdiction, which is to defeat a cause
      of action for which the state has not waived sovereign immunity (usually
      before the state has incurred the full costs of litigation), the purpose of
      summary judgments in Texas is to eliminate patently unmeritorious claims
      and untenable defenses.


                                             4
Tex. Dep’t of Parks & Wildlife v. Miranda, 

 (Tex. 2004) (cleaned up).

Because a summary judgment motion is intended to dispose of claims prior to hearing

testimony or receiving evidence at trial, by suspending its ruling on appellants’ summary

judgment motion until “after the close of evidence at trial,” the trial court implicitly denied

the motion. See Well Solutions, Inc. v. Stafford, 

 (Tex.App.—San

Antonio 2000, no pet.) (stating a ruling is implicit if it is unexpressed, but capable of being

understood from something else); see also Guerra v. Alexander, No. 04-09-00004-CV,

, at *3 (Tex. App.—San Antonio May 26, 2010, pet. denied) (mem. op.)

(finding trial court implicitly denied a motion for summary judgment when it proceeded to

trial). Accordingly, having found an implicit denial of appellants’ motion, we conclude we

have jurisdiction over this interlocutory appeal. 1 See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(6), (12); TEX. R. APP. P. 33.1(a)(2)(A).

                    III.     SUMMARY JUDGMENT & TCPA MOTION TO DISMISS

        “The standard of review for denial of a summary judgment is the same as for the

granting of a summary judgment.” Kaufman v. Islamic Soc. of Arlington, 

,

143–44 (Tex. App.—Fort Worth 2009, pet. denied) (first citing Wethington v. Mann, 

 (Tex. App.—Beaumont 2005, no pet.); and then citing Associated Press

v. Cook, 

 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (deciding an

interlocutory appeal filed under § 51.014(a)(6))). In a summary judgment case, the issue


        1  Appellees also argue that the trial court acted under its authority pursuant to the Texas Supreme
Court’s Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster, which allowed the trial
court to “modify or suspend any and all deadlines and procedures . . . .” Thirty-Eighth Emergency Order
Regarding COVID-19 State of Disaster, 

 (Tex. 2021). While the trial court did mention the
emergency order in a footnote in its order, this does not change our jurisdiction determination. The trial
court’s order did not modify or suspend any deadline or procedure, rather it deferred a ruling until “after the
close of evidence at trial.”
                                                      5
on appeal is whether the movant met the summary judgment burden by establishing that

no genuine issue of material fact exists and that the movant is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 

(Tex. 2002); City of Houston v. Clear Creek Basin Auth., 

 (Tex.

1979). The burden of proof is on the movant, we indulge every reasonable inference and

take as true all evidence favorable to the nonmovant, and all doubts about the existence

of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co.,

; see Valence Operating Co. v. Dorsett, 

 (Tex.

2005). Evidence that favors the movant’s position will not be considered unless it is

uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 

 (Tex. 1965).

       “The 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. CIV. PRAC. &

REM. CODE ANN. § 27.002. “To effectuate the statute’s purpose, the Legislature has

provided a two-step procedure to expedite the dismissal of claims brought to intimidate

or to silence a defendant’s exercise of these First Amendment rights.” ExxonMobil

Pipeline Co. v. Coleman, 

 (Tex. 2017) (per curiam); see TEX. CIV.

PRAC. & REM. CODE ANN. §§ 27.003, .005. Under the first step, a movant seeking to prevail

on a motion to dismiss under the TCPA has the burden to “show by a preponderance of

the evidence that the [nonmovant’s legal action] is based on, relates to, or is in response


                                            6
to the movant’s exercise of (1) the right of free speech; (2) the right to petition; or (3) the

right of association.” Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). Under the

second step, if the trial court determines that the movant has met his burden to show 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.” Id.

§ 27.005(c). Even if the nonmovant presents a sufficient prima facie case, the trial court

must dismiss the legal action “if the [movant] ‘establishes by a preponderance of the

evidence each essential element of a valid defense’ to the [nonmovant’s]

claim.”ExxonMobil Pipeline Co., 

; see TEX. CIV. PRAC. & REM. CODE

ANN. § 27.005(d). In our prior opinion, we determined the TCPA applies in this matter.

See TV Azteca, 611 S.W.3d at 32.

       In reviewing trial court’s ruling on a motion to dismiss under the TCPA, we apply a

de novo standard of review. Serafine v. Blunt, 

 (Tex. App.—Austin

2015, no pet.). That is, we review de novo whether each party has met its respective

burden under the TCPA’s two-step dismissal mechanism. Long Canyon Phase II & III

Homeowners Ass’n v. Cashion, 

 (Tex. App.—Austin 2017, no pet.).

A.     Statute of Limitations

       “A person must bring suit for malicious prosecution, libel, slander, or breach of

promise of marriage not later than one year after the day the cause of action accrues.”

TEX. CIV. PRAC. & REM. CODE ANN. § 16.002(a). Appellants assert that twenty-eight of the

thirty-one alleged defamatory statements are barred by the SOL, having been pleaded

more than a year after publication. Of the twenty-eight statements, we have previously


                                              7
disposed of seven statements (statements 1, 2, 8, 9, 12, 13, and 18) as to all appellees

and we will not readdress those statements herein. See TV Azteca, 611 S.W.3d at 33.

Appellants argue on appeal that statements 3–7, 10, 11, 14–17, 19–21, and 25–31 are

also barred by the one-year SOL as to appellees Trevi and Gomez, as each of the

individual allegedly defamatory statements was published more than one year before

appellees asserted them.

       Appellees do not refute the SOL argument made by appellants against Trevi and

Gomez; rather, they assert that the “claims should survive alongside Gabriel’s.” Citing no

case law or authority for support, appellees essentially argue that appellants’ burden to

defend against these statements in relation to Gabriel is the same regardless of whether

Trevi and Gomez are also alleging the claims, so “there is no reason to hold that

[appellants] should not have to defend against” the claims as to all appellees. See TEX.

R. APP. P. 38.1(i). While appellees attempt to argue this is the “practical conclusion,” we

disagree. The SOL is clear, and we find no case law or authority to suggest that a plaintiff

can join another plaintiff’s claims merely because the defendants will already be

defending that claim. Accordingly, we find that the SOL barred appellees Trevi and

Gomez from bringing claims related to statements 3–7, 10, 11, 14–17, 19–21, and 25–

31. The trial court erred in not granting appellants’ summary judgment motion as to those

claims by Trevi and Gomez.

B.     Of and Concerning

       “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


                                             8
of fault, and (4) damages, in some cases.” In re Lipsky, 

 (Tex. 2015)

(orig. proceeding). Appellants allege that several of the statements are not “of and

concerning” Gomez and/or Gabriel and therefore cannot be asserted by those appellees.

       1.     Statements 22–24

       Appellants argue that statements 22–24 are not “of and concerning” Gomez or

Gabriel. “A publication is ‘of and concerning the plaintiff’ if persons who knew and were

acquainted with [the plaintiff] understood from viewing the publication that the defamatory

matter referred to [the plaintiff].” Houseman v. Publicaciones Paso del Norte, S.A. DE

C.V., 

 (Tex. App.—El Paso 2007, no pet.). Statement 22 reads:

       Televisa’s part is a disgusting double standard, and I’m going to tell you
       why. Because they attack Julion [Alvarez] in this case. Yes, they accuse
       him of money laundering, but they have had judges [referring to Trevi] in
       that program [La Voz] that are much more dangerous criminals and
       criminals much more disgusting. It is worse that they [Televisa] have
       accepted other judges [Trevi] who have had much more important crimes
       that can damage much more their image as a brand than one who is
       accused of money laundering. Worse is the one [Trevi] who is accused of
       murder and other things.

(alteration in original). Appellees do not address whether statement 22 is “of and

concerning” Gomez or Gabriel. In reviewing statement 22, there is no mention, directly or

indirectly, of Gomez or Gabriel. Accordingly, as to Gomez and Gabriel, the trial court erred

in not granting appellants’ summary judgment motion as to statement 22.

       Statement 23 reads:

       Many who are young do not remember or don’t know about the case
       involving Trevi-Andrade in which, through the singer, the manager recruited
       young little girls to then abuse them. Gloria was the accused accomplice as
       it was shown that she helped convince these girls to join the clan and to
       submit to Sergio’s sexual advances because it would open the doors to the
       world of fame.

                                             9
       Statement 24 reads:

       This is how a network of young girls got started in which there were rapes,
       pregnancies, forced abortions, physical abuse, terror, threats and more.
       Gloria and Sergio were detained, she was in prison for four years, eight
       months and eight days.

Appellees contend that statement 23 refers to Gomez, the lawyer in Trevi’s criminal case,

because it uses the words “the case” and statement 24 refers to Trevi’s criminal case.

We disagree. While appellees are not incorrect in pointing out the words used in the

statements, the statements do not concern Gomez as it is not reasonably understood that

these two statements were intended to refer to him. See Newspapers, Inc. v. Matthews,

 (Tex. 1960) (stating that the false statement must point to the

plaintiff). The allegedly defamatory statements are not referring to “the case” or to Gomez,

directly or indirectly, but rather they are clearly referring to Trevi. Further, there is no

mention or even mere reference to Gabriel in either statement. Accordingly, as to Gomez

and Gabriel, the trial court erred in not granting appellants’ summary judgment motion as

to statements 23 and 24.

       2.     Statements 3–7, 10, 11, 14–17, 19–21, and 25–31

       Appellants argue that statements 3–7, 10, 11, 14–17, 19–21, and 25–29 are not

“of and concerning” Gabriel. Appellees do not address this argument as to all of the

statements; rather, they focus on the argument as it relates to statements 25–29. In our

review of statements 3–7, 10, 11, 14–17, and 19–21 we find no reference to Gabriel,




                                            10
either directly or indirectly. As to those statements, we find the trial court erred in not

granting appellants’ summary judgment motion.

       We now turn to the statements first pled in appellees’ sixth amended petition,

statements 25–31. Each of these statements directly or indirectly references Gabriel. The

statements directly relate to or mention: Trevi’s “pregnancy” (statement 25), “Trevi’s son”

(statement 26), “insemination” of Trevi (statement 27), Trevi’s pregnancy (statement 28),

“Trevi’s son” (statement 29), “Angel Gabriel” (statement 30), and “bastard son” (statement

31). Accordingly, the trial court did not err in not dismissing these statements as to Gabriel

on “of and concerning” grounds.

C.     Gabriel’s Remaining Claims

       Appellants contend that even if statements 23–31 are of and concerning Gabriel,

they should have been dismissed because they are “not defamatory” or they are

substantially true. “Whether a publication is capable of a defamatory meaning is initially

a question of law for the court.” Allied Marketing Grp., Inc. v. Paramount Pictures Corp.,

 (Tex. App.—Eastland 2003, pet. denied). Allegedly defamatory

statements must be construed “as a whole[,] in light of the surrounding circumstances[,]

based upon how a person of ordinary intelligence would perceive the publication.” 

; Provencio v. Paradigm Media, Inc., 

 (Tex. App.—El Paso 2001,

no pet.). If a defamatory meaning may exist, then the publication is considered to be

ambiguous and a jury must be allowed to determine whether an ordinary reader would

perceive the statement as defamatory. Allied Marketing Grp., 

. “The

opinion of the plaintiff has no bearing on whether the words or statements are actually


                                             11
defamatory.” Houseman, 

 (citing Harmon v. Corinthian Broadcasting,

No. C14-86-00168-CV, 

, at *2 (Tex. App.—Houston [14th Dist.] Aug. 21,

1986, no writ.) (mem. op.)). “Where a publication is capable of two interpretations, one of

which is defamatory, summary judgment is improper.” 

 (citing Harmon, 

,

at *2).

          Appellants assert that statements 25, 26, and 28 mention Trevi’s pregnancy and

the possible fathers of Gabriel, but they are “not defamatory.” Each of the three

statements discusses the manner in which Trevi was impregnated and implies that

paternity is unknown. Statement 25 reads:

          I assure that the pregnancy [of Angel Gabriel] was the product of repeated
          sexual assault by Francisco Murapelo, delegate of the superindendency
          [sic] of th [sic] federal police.

(alteration in original).

Statement 26 reads:

          Three names have been mentioned as possible fathers of Trevi’s son. One
          of them is Marcelo Borelli who is accused of raping her.

Statement 28 reads:

          We are going to a commercial. When we return, please do not leave,
          because the interview with the Brazilian mobster is coming, they were telling
          him that it was the drug dealer I interviewed up threw himself into Trevi (Pati
          Chapoy). Let’s see how Trevi got pregnant (Pedro Sola). Interview with
          Marcelo Borelli, the drug trafficker who in in [sic] prison in Brazil, and who
          was blamed for Gloria Trevi’s son, but he says that everything about the
          pen and the semen came from him. It was his idea (Aurora Valle).

(alterations in original).




                                                12
       Appellants contend that these three statements are not defamatory as to Gabriel

because he “had no role in how he was conceived, those statements do not reflect on his

reputation or character[, n]or do they impeach his honesty, integrity, or virtue.”

       As to statements 30 and 31, appellants argue that the statements “allegedly refer

to Gabriel as a ‘bastard’” but that “‘bastard’ in modern-day society is simply not

defamatory because it does not damage that child’s reputation or bear on that child’s

honesty, integrity, or virtue.” Statement 30 reads:

       [Speaking] of the bastard Angel Gabriel, who sired him?

(alteration in original).

Statement 31 reads :

       [Trevi] is shameless, even while she was in prison she had sex with Adrade
       [sic] and that is how her bastard son was spawned.

(alteration in original).

       Whether a publication is capable of a defamatory meaning is initially a question for

the court. Hancock v. Variyam, 

 (Tex. 2013) (citing Musser v. Smith

Protective Servs., 

 (Tex. 1987)). But when a publication is of

ambiguous or doubtful import, the jury must determine its meaning. 

 A statement is

defamatory if it tends to injure the subject’s reputation, to expose him to public hatred,

contempt, ridicule, or financial injury, or to impeach his honesty, integrity, or virtue. Dall.

Morning News, Inc. v. Tatum, 

 (Tex. 2018); Chehab v. Edgewood

Dev., Ltd., 

, 835 (Tex. App.—Houston [14th Dist.] 2021, no pet.). “To

qualify as defamatory, a statement should be derogatory, degrading, somewhat shocking,

and contain elements of disgrace.” Better Bus. Bureau of Metro. Hous., Inc. v. John Moore

                                              13
Servs., Inc., 

 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The

statutory definition of libel is generally consistent with the understanding of defamation as

stated in case law. 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 or to

publish the natural defects of anyone and thereby expose the person to public hatred,

ridicule, or financial injury”).

        Here, appellants assert that the statements are not defamatory to Gabriel as he

had no role in his conception, nor is his reputation or character called into question.

However, the sentiment or intent behind the statements could be construed as more than

just a comment on his conception, but rather an indication that he was the product of

sexual assault or rape, a sensitive accusation related to Gabriel’s life. Because there are

multiple ways to interpret the sentiment or intent of statements 25, 26, 28, 30, and 31, we

conclude there is ambiguity, and a question of fact remains as to these statements for

Gabriel. See Means v. ABCABCO, Inc., 

 (Tex. App.—Austin 2010,

no pet.). The trial court did not err in refusing to dismiss these statements as to Gabriel

on these grounds. 2


        2 We note that appellants assert that statements 23–31 are not defamatory as to Gabriel, however,

we have already determined the trial court erred in not dismissing statements 23 and 24 as to Gabriel on
“of and concerning grounds” so we do not readdress those statements here. Further, as to statement 27,
appellants’ argument flows directly from the prior “of and concerning” argument. Having already determined
statement 27 is of and concerning Gabriel, we need not discuss that issue again. Additionally, statement
29 is not discussed specifically in this section. As such, we have not addressed statement 29 herein. See
TEX. R. APP. P. 38.1(i); Akin v. Santa Clara Land Co., 

 (Tex. App.—San Antonio 2000,
pet. denied) (“Each distinct publication of a defamatory statement inflicts an independent injury from which
a defamation cause of action may arise.”).
                                                    14
       Alternatively, appellants argue that statements 30 and 31 are barred by the

affirmative defense of substantial truth. A showing of substantial truth of defamatory

words will defeat a defamation cause of action. McIlvain v. Jacobs, 

, 15–

16 (Tex. 1990) (holding broadcaster’s establishing substantial truth of broadcast as matter

of law defeated defamation action). The test of substantial truth is “whether the alleged

defamatory statement was more damaging to [plaintiff’s] reputation, in the mind of the

average listener, than a truthful statement would have been.” 

; see Turner v.

KTRK Television, Inc., 

 (Tex. 2000) (noting substantial truth doctrine

“precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although

erring in the details”). Appellants’ argument is essentially that Gabriel is a “person born

out of wedlock” and, by definition, a “bastard.” See BLACK’S LAW DICTIONARY (11th ed.

2019) (defining “bastard” as “[a] person born out of wedlock” or “[a] child born to a married

woman whose husband could not be or is otherwise proved not to be the father”).

Because Gabriel falls within this definition, appellants contend that statements 30 and 31,

which refer to him as a bastard, are substantially true. However, the term bastard has

been defined in various ways, several with negative connotations. See Gilcrease v. State,

 (Tex. App.—San Antonio 2000, pet. ref’d) (discussing various

definitions of “bastard” including the Oxford Dictionary defining “bastard,” in part, as

“disliked or unfortunate person” and Webster’s Dictionary defining “bastard,” in part, as

“an offensive or disagreeable person”). Accordingly, because a defamatory meaning may

exist, it is within the province of a factfinder to determine whether an ordinary reader

would perceive the statement as defamatory. See Allied, 

. The trial


                                               15
court did not err in denying appellants’ motion as to statements 30 and 31 as they apply

to Gabriel.

D.     Trevi’s Remaining Claims

       Statements 22–24 were not subject to dismissal under the SOL, however,

appellants raised additional grounds for dismissal of these statements as to Trevi.

Appellants argue that statement 22 should have been dismissed under the “group libel

doctrine” and consists of “non-actionable rhetorical hyperbole,” and statements 23 and

24 should have been dismissed under the “third-party allegation rule” and “fair report

privilege.”

       1.     Group Libel Doctrine

       Under the group libel doctrine, a plaintiff has no cause of action for a
       defamatory statement directed to some of, but less than, the entire group
       when there is nothing to single out the plaintiff. Harvest House Publishers
       v. Local Church, 

 (Tex. App.—Houston [1st Dist.] 2006,
       pet. denied). Consequently, the plaintiff has no cause where the statement
       does not identify to which members it refers. See id.; see also Wright v.
       Rosenbaum, 

, 231–33 (Tex. App.—Houston [1st Dist.]
       1961, no writ) (holding that the statement that “one of the four ladies” stole
       a dress, without more, was not a slanderous statement to any one in
       particular).

              In contrast, if a statement refers to all members of a small group,
       then individuals within that group can maintain a defamation claim. See
       Sellards v. Express–News Corp., 

 (Tex. App.—San
       Antonio 1985, writ ref’d n.r.e.) (holding claim of drug use and suicide
       construed to apply to everyone in car was actionable by one passenger);
       Harvest House, 

 (holding defamatory statement directed
       at group of individuals is actionable when statement infers all members of
       group participated in activity forming basis of defamation claim).

               The focus of our inquiry is how the message can be perceived
       objectively by a reasonable person. Harvest House, 

. “[I]t
       is not necessary that every listener understand [the reference to the
       plaintiff], so long as there are some who reasonably do so.” 

 A claim is

                                            16
       actionable “if the language of the publication and the surrounding
       circumstances are such that friends and acquaintances of the plaintiff
       recognize that the publication is about the plaintiff” when that recognition is
       objectively reasonable. 

.

Levine v. Steve Scharn Custom Homes, Inc., 

 (Tex. App.—Houston

[1st Dist.] 2014, pet. denied).

       Statement 22, without the alterations added by appellees in their petition, reads:

       Televisa’s part is a disgusting double standard, and I’m going to tell you
       why. Because they attack Julion in this case. Yes, they accuse him of
       money laundering, but they have had judges in that program that are much
       more dangerous criminals and criminals much more disgusting. It is worse
       that they have accepted other judges who have had much more important
       crimes that can damage much more their image as a brand than one who
       is accused of money laundering. Worse is the one who is accused of murder
       and other things.

Here, appellants contend that there is nothing to single out Trevi as the judge being

referred to in the statement. We disagree. There are specific indicators of a single judge

being referred to, not a group. The statement specifically refers to one judge “who is

accused of murder and other things.” This is not a statement referring to a group of

people. Accordingly, it does not fall within the group libel doctrine and the trial court did

not err in failing to dismiss it as such.

       2.      Non-Actionable Rhetorical Hyperbole

       Appellants assert that statement 22 should have been dismissed because it

“consists of non-actionable rhetorical hyperbole.” “[T]o be actionable, a statement must

assert an objectively verifiable fact rather than an opinion.” Backes v. Misko, 

 (Tex. App.—Dallas 2015, pet. denied). Here, the statement alleges that a judge on

the television show is a “much more dangerous criminal” and “much more disgusting”


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than someone accused of money laundering. It then goes on to state that the judge being

discussed is “one who is accused of murder and other things.” Whether or not a person

is accused of murder is a statement that is capable of being proved true or false and is

therefore not merely rhetorical hyperbole. We disagree with appellants’ assertion as such

and find that the trial court did not err in denying appellants’ motion as to statement 22 in

relation to Trevi.

       3.      Third-Party Allegation Rule and Fair Report Privilege

       Generally, media outlets enjoy a privilege that protects publications
       describing official proceedings of public concern. TEX. CIV. PRAC. & REM.
       CODE [ANN.] § 73.002(a). If the report of the proceeding is substantially
       true—“a fair, true, and impartial account”—the publication is privileged and
       not actionable. KBMT Operating Co. v. Toledo, 

, 714–15
       (Tex. 2016). And while the defendant must prove the applicability of the
       privilege, the plaintiff bears the burden to prove the report was false. 

               Similarly, media outlets that accurately report allegations made by a
       third party about matters of public concern can assert the truth as a defense.
       TEX. CIV. PRAC. & REM. CODE [ANN.] § 73.005(b). And because this third-
       party-allegation rule—like the official-proceeding privilege—bears on
       substantial truth, the plaintiff has the burden under the Act to show falsity at
       the motion-to-dismiss stage.

Dall. Morning News, Inc. v. Hall, 

 (Tex. 2019). Appellants contend

that statements 23 and 24 should have been dismissed because they “are attributable to

a third-party website, and they merely consist of the publisher’s accurate reports of the

allegations involved in criminal proceedings against Trevi and Andrade.” Therefore,

appellants argue it was appellees’ burden to show falsity. Statement 23 reads:

       Many who are young do not remember or don’t know about the case
       involving Trevi-Andrade in which, through the singer, the manager recruited
       young little girls to then abuse them. Gloria was the accused accomplice as
       it was shown that she helped convince these girls to join the clan and to


                                             18
       submit to Sergio’s sexual advances because it would open the doors to the
       world of fame.

Statement 24 reads:

       This is how a network of young girls got started in which there were rapes,
       pregnancies, forced abortions, physical abuse, terror, threats and more.
       Gloria and Sergio were detained, she was in prison for four years, eight
       months and eight days.

       In response, appellees argue that appellants’ statements 23 and 24 did not “just

accurately report allegations,” but rather the statements made assertions beyond the

allegations. We agree. Both statements contain language that goes beyond a reporting

of allegations, both statements insert opinions as to the veracity of the allegations and

what the writer of the statement believed the case proved, implying the guilt of Trevi. “[A]

plaintiff can bring a claim for defamation when discrete facts, literally or substantially true,

are published in such a way that they create a substantially false and defamatory

impression by omitting material facts or juxtaposing facts in a misleading way.” Turner,

. “So even if a publication ‘gets the details right but fails to put them in

the proper context and thereby gets the story’s “gist” wrong,’ it may be liable for

defamation.” Hall, 

 (quoting Turner, 

). Each of the

statements, taken as a whole, could be perceived as an implication that Trevi was guilty

of the accusations made against her, rather than simply reporting the allegations.

Accordingly, we find the trial court did not err in denying appellants’ motion on these

grounds.




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                                           IV.     CONCLUSION

        We reverse in part the trial court’s order and render judgment dismissing all of

Gomez’s actions against appellants 3, dismissing Trevi’s actions against appellants as

they stem from statements 1–21 and 25–31, and dismissing Gabriel’s actions as they

stem from statements 1–24. We affirm the remainder of the trial court’s order, maintaining

statements 22–24 as to Trevi and statements 25–31 as to Gabriel.


                                                                            NORA L. LONGORIA
                                                                            Justice

Delivered and filed on the
29th day of December, 2022.




        3 Appellees’ petition alleged derivative claims stemming from the alleged defamatory statements.
Because we have dismissed all of Gomez’s defamation claims, his other claims necessarily fail. See
Freedom Newspapers of Tex. v. Cantu, 

, 852 n.3 (Tex. 2005) (“[T]o the extent [plaintiff’s]
pleadings allege claims other th[a]n defamation [by using multifarious subtitles], they must stand or fall with
his defamation claim.”).

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