In an opinion authored by Chief Justice Rogelio Valdez of the Thirteenth District Court of Appeals that was issued Thursday, the defendants’ claim that Texas did not have jurisdiction was soundly rejected.
Valdez upheld the ruling of the 139th District Court in Hidalgo County.
Trevi claimed in a lawsuit filed in 2009 that Chapoy, via her gossip program Ventaneando, caused Trevi and her family economic and emotional harm by insinuating that she was under investigation for ties to drug traffickers and that her husband was a known narcotics smuggler.
Trevi’s husband, Armando Gomez, was in years past Trevi’s criminal defense attorney. In 2000, Trevi was arrested in Brazil on charges of corrupting minors. She spent four years and eight months in prison before being cleared.
In addition to TV Azteca and Chapoy, also known by her nickname Pati Chismoy, the lawsuit goes after Publimax S.A., a Monterrey-based broadcasting company with three stations that broadcast in the northern states of Coahuila, Nuevo Leon and Tamaulipas.
The defendants argued on appeal that Texas was not the proper forum because they were not Texas residents, did not conduct business in the state, and did not target the Texas market.
They also claimed that no research or reporting was done in Texas in support of the alleged defamatory report. Publimax also argued that it was licensed to broadcast by the Mexican government, not the Federal Communications Commission, and that to the extent its broadcast was picked up by Rio Grande Valley residents on the U.S. side, this was incidental to geography and not intentional.
Justice Valdez cited depositions extensively that provided evidence contradicting most of the defenses.
Trevi, a McAllen resident, said she watched the offending broadcast at her mother-in-law’s home in McAllen after her aunts called her to tell her what was happening.
“People who are interested to cause me harm,” were on the program, Trevi testified, “and Chapoy was giving credibility to those statements and making affirmations about what was being said.”
Trevi said she repeatedly refused to give TV Azteca interviews, but they hounded her around McAllen.
“They have approached me, putting their microphones in front of my face,” she said. “At the hospital after my son was born. They have tried it with my family at my mom’s different houses, at Tony Roma’s restaurant some years ago, at the airport.”
Trevi alleged Chapoy’s reports caused concert cancellations and she lost commercial sponsor opportunities for an energy drink and perfume. It affected her ability to enroll her children in group activities.
In northern Mexico, the TV Azteca brand is TV Azteca Noreste. Othon Frias Calderon, TV Azteca’s attorney, testified that TV Azteca owns Azteca International Corp., whose headquarters are in California and Azteca America is a subsidiary. AIC uses licenses to re-broadcast TV Azteca programming in the United States.
Vicente Diaz, Publimax’s controller, was questioned about an Azteca Noreste website page that appeared to designate South Texas as a target market. It stated their programming reached 1.6 million people north of the border and 576,914 households from Eagle Pass to Port Isabel.
Diaz had to explain that, as well as why Publimax had tried to work a deal with Time Warner Cable to bring its programming through their network. He was also grilled on why Azteca Noreste broadcast commercials for a long list of small businesses based in the Rio Grande Valley.
Valdez took all this in and concluded the evidence here was stronger than it was in Keeton v. Hustler Magazine Inc., a 1983 U.S. Supreme Court decision that overturned a lower court’s dismissal of a plaintiff’s libel case.
In Keeton, the plaintiff filed a defamation lawsuit in New Hampshire. She was not a resident of the state but sought that forum because the statute of limitations had run in her home state.
The publisher of Hustler Magazine sold up to15,000 copies monthly, Valdez said.
“Here, the trial court had evidence that programs broadcast by TV Azteca and Publimax is seen in Texas potentially by over one million viewers and that these programs form the basis of the Trevi parties’ defamation suit.
“We conclude that broadcasting programs to residents of Texas supports an assertion of jurisdiction,” Valdez said.
He noted the defendants did not dispute the program was viewed in Texas, but claimed this was a technical glitch beyond their control.
“We disagree with appellants because the evidence supports a conclusion that appellants purposefully directed their activities at Texas,” he said.
He noted how Chapoy, in promotional spots for Azteca America, said the network targets Spanish speakers in the United States. He recalled the local advertising as proof that the company earned direct income from the Rio Grande Valley market.
“Taking the evidence together, the trial court could have found that TV Azteca intended to profit through its broadcasts directed to Texas. Thus, we conclude that TV Azteca and Publimax can be charged with knowledge of the laws of Texas, and we have no doubt that they would have claimed the benefit of them, if they had had a complaint regarding its programs or the advertisers in the Texas market.”
* Copyright protected / all rights reserved / Adolfo Pesquera