1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO. 09-13-00234-CV



### ____________________ KBMT OPERATING COMPANY, LL C, KBMT LICENSE COMPANY, LLC, BRIAN BURNS, JACKIE SIMIEN AND TRACY KENNICK, Appellants V. MINDA LAO TOLEDO, Appellee

________________ __________________ __________________ ___ ______________ On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A-130025-C

________________ __________________ ______________________ _____________ OPINION In this accelerated interlocutory appeal we must determine whether the trial court erred in failing to dismiss a p hysician’s defamation claim and award attorneys’ fees to the media defendants under the Texas Citizen s Participation Act (“TCPA”). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West Supp. 2013); see also id. § 27.008(b). We affirm the trial court’s order.2 BACKGROUND Dr. Minda Lao Toledo alleged that ove r a two-day period, KBMT Operating Company, LLC, KBMT License Company, LLC, Brian Burns, Jackie Simien, and Tracy Kennick defamed her in three news broadcasts, which stated as follows: A Port Arthur pediatrician has been punished by the Texas Medical Board after the Board found she e ngaged in sexual contact with a patient and became financially i nvolved with a patient in an inappropriate manner. Dr. Minda La o Toledo will have to complete sixteen hours of continuing medical education, including eight hours of ethics and eight hours of risk management, and pay an administrative penalty of three thous and dollars. Toledo is a native of the Philippines and has been practic ing medicine in Texas for five years. The statements in the broadcasts deri ve from public records, which include a September 7, 2012 press release issued by the Texas Medical Board (“TMB”) and the TMB’s physician profile webpage fo r Dr. Toledo. The press release announced that the TMB discip lined fifty-five physicians at its August 2012 meeting. Under the heading “UNP ROFESSIONAL CONDUCT[,]” the press release listed Dr. Toledo’s na me, medical license number, and location, and stated: On August 31, 2012, the Board and Minda Lao Toledo, M.D., entered into an Agreed Order requiring Dr. Toledo to complete 16 hours of CME including eight hours in et hics and eight hours in risk management, pass within one year and within three attempts the Medical Jurisprudence Exam, comp lete the professional boundaries course offered by the Vanderbilt Medical Center for Professional Health or a similar course offered by the University of California San Diego Physician Assessment a nd Clinical Education (PACE) program, and pay an administrative penalty of $3,000 within 90 days.3 The Board found Dr. Toledo be haved unprofessionally when she engaged in sexual contact with a pa tient and became financially or personally involved with a patien t in an inappropriate manner. Dr. Toledo’s physician profile lists “PHIL IPPINES” as her place of birth, states she “has actively practiced in the State of Texas for 5 year(s)[,]” and lists both her primary specialty and her secondary speci alty as “PEDIATRICS.” In addition, under the heading “TMB Filings, Actions and License Restrictions[,]” the physician’s profile contains a link to a downloadable copy of an August 31, 2012 agreed disciplinary order entered by th e TMB against Dr. Toledo (the “Agreed Order”). The Agreed Order purports to resolve the TMB’s investigation of certain allegations of Dr. Toledo’s “unprofession al sexual misconduct,” which the Agreed Order more specifically describes as allega tions “that while engaged in an intimate relationship with JC[,] [Dr. Toledo] injected JC with testosterone and human growth hormone without prescriptions a nd documentation in a medical record.” The Agreed Order includes findings that (1) “Respondent is primarily engaged in the practice of pediatric medicine[]”; (2 ) “Respondent entered into a relationship with JC, who was not her patient at th e time, and who was being prescribed testosterone to self-admin ister by another physician”; (3) “JC related that his diagnosis was an autoimmune disease, fo r which testosterone is non-therapeutic”; (4) “Respondent used her medical license to obtain testosterone and human growth4 hormone for JC while she was in an intimate relationship with him, and administered these substances to him”; (5) “Respondent did not make or keep medical records on her treatment of JC, nor of her obtaining and using the testosterone and human growth hormon e”; and (6) “Respondent accepted gifts from JC during the time she was treating hi m.” The Agreed Order neither mentions the patient’s age nor states that he was an adult when Dr. Toledo was treating him. After the news broadcasts were aire d, Dr. Toledo brought a defamation suit against the media defendants. Dr. Toledo alleged the broadcasts were defamatory per se in that they attribut ed a criminal activity and mo ral turpitude to her, tended to injure her business, a nd suggested professional incompetence. The media defendants contended that their broadcasts accurate ly reported information published by the TMB and moved to dism iss the defamation suit under the TCPA because it was based on the exercise of th e right to free speech and the right to petition. See Tex. Civ. Prac. & Rem. Code A nn. §§ 27.001(3)-(4), 27.003(a). Dr. Toledo responded that the broadcasts implie d that she had had sex with a pediatric patient when the truth was that the patie nt in question was her adult boyfriend. Specifically, Dr. Toledo asserted that the “real story” was that she had been involved in a long term dating relati onship with an older adult male, who had been taking testosterone (to self-administer) and growth hormone injections from another phys ician. At some point, for the convenience of her dating partner, and at his request, Dr. Toledo purchased the hormone and testoste rone and gave the injections.5 That’s it. She was taken to task b ecause this 60 year old adult male, soured by the recent breakup, made a report to the Texas Medical Board. Following a hearing, the trial court denied the media defendants’ motion to dismiss without stating a basis and wa s not asked to make findings of fact or conclusions of law. The media defendants timely filed this accelerated appeal. See Combined Law Enforcement Ass’ns of Tex. v. Sheffield , No. 03-13-00105-CV, 2014 WL 411672, at *4 (Tex. App.—Austin Jan. 31, 2014, no pet. h.) (mem. op.) (determining that the Texas Civil Practi ce and Remedies Code , as amended in 2013, confers jurisdiction over appeals file d pursuant to section 27.008 that are perfected before and active on the e ffective date of the amendment); Better Bus. Bureau of Metro. Houston, In c. v. John Moore Servs., Inc. , No. 01-12-00990-CV, 2013 WL 3716693, at *2 (Tex. App.—Houston [1st Dist.] July 16, 2013, pet. denied) (holding an interlocutory appeal is allowed from the trial court’s written order denying a motion to dismiss under the TCPA). ANALYSIS A. Procedure for Dismissal Under the TCPA The stated purpose of the TCPA “i s to encourage and safeguard the constitutional rights of persons to petiti on, 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 for6 demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA is basically a gatekeeping function of the tria l court, as section 27.003(b) provides that a motion to dismiss under the act is to be filed not later than the 60th day after the date of service of the legal action. Id. § 27.003(b). Dismissa l is required under the TCPA “if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to pe tition; or (3) the right of association.” Id. § 27.005(b). The TCPA defines the “‘[e]xer cise of the right of free speech’” as “a communication made in connection w ith a matter of public concern.” Id. § 27.001(3). The TCPA defines the “‘[e]xerci se of the right to petition’” as, among other things, a communication pertaining to “(iii) an executive or other proceeding before a department of the state or federa l government or a subdivision of the state or federal government;” and “(viii) a report of or debate and st atements made in a proceeding described by Subparagraph (iii)[.]” Id. § 27.001(4)(A)(iii), (viii). Whether a party satisfies its burden under section 27.005(b) is a legal question we review de novo. Rehak Creative Servs., Inc. v. Witt , 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). If the moving party satisfies its burde n under section 27.005(b), the trial court must dismiss the legal action unless the party bringing the action “establishes by clear and specific evidence a prima facie case for each essential element of the7 claim in question.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). “‘Prima facie evidence is evidence that, until its eff ect is overcome by other evidence, will suffice as proof of a fact in issue.’” Rehak , 404 S.W.3d at 726 (quoting Duncan v. Butterowe, Inc. , 474 S.W.2d 619, 621 (Tex. Civ. App.—Houston [14th Dist.] 1971, no writ)). “‘In other words, a prima facie case is one th at will entitle a party to recover if no evidence to the contra ry is offered by the opposite party.’” Id

. (quoting Duncan , 474 S.W.2d at 624). “‘Clear and specific evidence has been described as evidence that is ‘unaid ed by presumptions, inferences, or intendments.’” Id. (quoting McDonald v. Clemens , 464 S.W.2d 450, 456 (Tex. Civ. App.—Tyler 1971, no writ)). “On appeal from an or der decided under section 27.005(c), we determine de novo whether the record cont ains a minimum quantum of clear and specific eviden ce that, unaided by inferences, would establish each essential element of the claim in questio n if no contrary evidence is offered.” Id. at 727. B. Exercise of the Right of Free Speech and the Right to Petition The media defendants contend that they satisfied their burden under section 27.005(b) to prove by a pre ponderance of the evidence that Dr. Toledo’s legal action is based on the exercise of the righ t to free speech and th e right to petition. We agree. In support of their motion to dismiss, the media defendants attached an affidavit from the news director for Ch annel 12 News. The affidavit stated that8 after receiving an anonymous tip regardi ng recent disciplinary action by the TMB, Channel 12 News reviewed the TMB’s we bsite and discovered the September 7, 2012 press release and then reviewed Dr . Toledo’s publicly available physician profile on the TMB website. The news director stated that “Channel 12 News found the [TMB’s] disciplinary action agai nst a local physician newsworthy and of concern to the public.” He further stated that the information contained in the broadcasts was gathered solely from th e press release and the physician profile available on the TMB’s website. In a ddition, the media defendants attached affidavits from each of the three defendant s who read the news report on the air. Each swore that he or she read the news report on the air from information prepared by Channel 12 News as part of its normal business and that he or she believed the information contained in the report “is true and correct, as well as newsworthy and of concern to the public.” The broadcasts pertained to the TM B’s public discipline of a physician, which is a matter of public concern becaus e it relates to health or safety, to the government, and to a service in the marketplace. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(A), (C), (E ). The exercise of the right to petition includes a communication pertaining to proceedings befo re a department of the state, or a report of statements made during such proceedings. Id. § 27.001(4)(A)(iii), (viii). Because the broadcasts were communicati ons pertaining to a proceeding before a9 department or subdivision of the state gove rnment, they constitute an exercise of the right to petition. Therefore, to avoi d mandatory dismissal under the statute, Dr. Toledo was required to establish in the record a minimum quantum of clear and specific evidence, unaided by inferences, of each essential element of her claim. Id. § 27.005(c). C. Prima Facie Case of Defamation To maintain a cause of action for defa mation, Dr. Toledo must prove that the media defendants: “(1) publis hed a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement.” WFAA-TV v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998). Therefore, to overcome the motion to dismiss, Dr. Toledo must establish a prima facie case by presenti ng clear and specific evidence for each essential element of her defamation claim. The parties do not dispute that the media defendants published the broadcasts in question. Th erefore, we turn to the second element of defamati on and determine whether Dr. Toledo met her burden of proof to present clear and specific evid ence that the broadcasts were defamatory concerning Dr. Toledo.10 1. Defamatory Statement A defamatory statement “tends to in jure a living pers on’s reputation and thereby expose the person to public hatred, c ontempt 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 expos e the person to public hatred, ridicule, or financial injury.” Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011) (describing elements of libel) 1 . Because a “‘chilling eff ect’ would be antithetical to the First Amendment’s protection of true speech on matters of public concern, . . . a private-figure plainti ff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Philadelphia Newspapers, Inc. v. Hepps , 475 U.S. 767, 777 (1986). Some statements are so obviously injuri ous to a plaintiff’s reputation that they require no proof of injury to make them actionable. See Hancock v. Variyam , 400 S.W.3d 59, 63-64 (Tex. 2013); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc ., 219 S.W.3d 563, 580-81 (Tex . App.—Austin 2007, pet. denied). Such statements are c onsidered defamatory per se. Id . A false statement will typically be classified as defamatory per se if it: (1) “inj ures a person in his office, profession, or occupation[;]” (2) “charges a person with the commission of

1 “Defamatory statements read from a script and broadcast constitute libel rather than slander.” Dolcefino v. Randolph , 19 S.W.3d 906, 917 (Tex. App.— Houston [14th Dist.] 2000, pet. denied) (citing Christy v. Stauffer Publ’ns, Inc. , 437 S.W.2d 814, 815 (Tex. 1969)).11 a crime[;]” (3) “imputes sexual miscon duct[;]” or (4) “accuses one of having a loathsome disease[.]” Tex. Disposal Sys. Landfill , 219 S.W.3d at 581. If the alleged statement is determined to be defamatory per se, general damages are presumed without requiring specific evidence of harm to the plaintiff’s reputation, thereby entitling the plaintiff to recover, at a minimum, nominal damages. Id

. A showing of the substantial truth of a broadcast will defeat a defamation claim. See McIlvain v. Jacobs , 794 S.W.2d 14, 15 (Tex. 1990) . “The test used in deciding whether the broadcast is substan tially true involves consideration of whether the alleged defamatory statement was more damaging to [the plaintiff’s] reputation, in the mind of the average liste ner, than a truthful statement would have been.” Id. (citing 53 C.J.S. Libel and Slander § 109(a) (1987)). “This evaluation involves looking to the ‘gist’ of the broadcast.” Id. (citing W. P ROSSER & P.
K EETON , P ROSSER AND K EETON ON T ORTS § 116 (1984)). “Gist” means: “1. The ground or essence (of a legal action) <the gist of the crime>. 2. The main point <she skimmed the brief to get the gist of it>.” See B LACK ’ S L AW D ICTIONARY 759 (9th ed. 2009). If the publication correctly conveys a story’s gist, although erring in the details, the publication is substa ntially true and is not actionable. See Neely v. Wilson , 418 S.W.3d 52, 63-64 (Tex. 2013). “If the underlying facts as to the gist of the defamatory charge are undisputed, then we can disregar d any variance with12 respect to items of secondary importan ce and determine substantial truth as a matter of law.” McIlvain , 794 S.W.2d at 16. This case concerns “the converse of the substantial truth doctrine.” Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 115 (T ex. 2000). “Because a publication’s meaning depends on its effect on an ordinary person’s perception, courts have held that under Texas la w a publication can convey a false and defamatory meaning by omitting or juxtapos ing facts, even though all the story’s individual statements considered in isolation were litera lly true or nondefamatory.” Id. at 114. This theory “permit[s] liability for the publication that gets the details right but fails to put them in the proper context and thereby gets the story’s ‘gist’ wrong.” Id. at 115. “[T]he meaning of a publication, and thus whether it is false and defamatory, depe nds on a reasonable person’s perception of the entirety of a publication and not merely on individual statements.” Id. Dr. Toledo, therefore, bore the burden of pres enting the requisite minimum quantity of evidence that the “gist” of the broadcast in question was false as a part of her prima facie case of defamation. The media defendants assert that th e broadcasts were not defamatory because all of the statements in the broadcasts were lite rally true and because they accurately reported the statements containe d in the TMB’s official publications. They argue their newscasts, like the TMB’ s press release and Agreed Order, did13 not identify the age or identity of the patient with whom Dr . Toledo had “sexual contact” and became “financially or pers onally involved . . . in an inappropriate manner.” They claim they added no desc riptive terms to describe the TMB’s sanctions of Dr. Toledo. In short, they contend that Dr. Toledo brought forth no clear and specific evidence that they fals ely reported the TMB’s recitation of its disciplinary action against Dr. Toledo. We disagree. Dr. Toledo attached video clips and c opies of the transcripts of the three allegedly defamatory broadc asts to her response to the media defendants’ motion to dismiss. Each of the broadcasts be gins by stating that “[a] Port Arthur pediatrician has been punished by the Te xas Medical Board after the Board found she engaged in sexual contact with a patie nt and became financially involved with a patient in an inappropriate manner.” Although much of the information in this statement has been quoted, nearly verbatim , from the press release, the broadcasts, unlike the press release, begin with the asse rtion that the subject of the broadcasts is a “pediatrician.” A person of ordinary intelligence viewing the broadcasts would know that a pediatrician is a doctor that specializes in the me dical treatment of children. Therefore, the average view er could, and in most cases would, reasonably conclude that the “patient” of a “pediatrician” is a child. While it is a true statement, as the medi a defendants contend, that Dr . Toledo is a pediatrician and that the TMB did discipline her fo r having improper sexual contact with a14 patient, the media defendants’ decision to place these two facts together in the same sentence, particularly with the word “pediatrician” being used, in essence, as the subject of the phrase “engaged in sexua l contact with a patient,” resulted in a statement that was reasonably capable of being interpreted by the average listener as stating that Dr. Toledo was punished for having improper se xual contact with a child. Further, the remaining content of the newscasts does not effectively negate the impression that the patient referenced in the broadcast was a child. In addition to stating that Dr. Toledo was found to have engaged in “sexual contact with a patient,” the broadcasts state that Dr. Toledo was found to have become “financially involved with a patient in an inappropriate manner .” The broadcasts do not define or otherwise explain what is meant by the phrase “financially involved.” Depending on the context, the te rm could reasonably be construed to have different meanings, including the simp le act of gift-giving, which is equally likely to involve an adult or a child. Viewi ng the broadcast as a whole, a viewer of ordinary intelligence could reasonably c onclude that a pediatrician who has engaged in sexual contact with a minor patient might also engage in other inappropriate conduct with that patient, including giving money or gifts to, or accepting money or gifts from, that patient.15 We also disagree with the media defend ants’ argument that the broadcasts’ listing of “administrative—not criminal—sanctions imposed by the TMB” removes any implication that Dr. Toledo engaged in sexual contact with a minor patient. The scope of the broadcast is limited to a report of findings and conclusions made in a proceeding before the Texas Medical Board. The Texas Medical Board is an administrative agen cy with no authority to criminally prosecute a physician. Therefore, the men tion of only administrative sanctions in a report that is limited to coverage of an administ rative proceeding would not necessarily alert the average viewer that the sanctioned offense was not a crime. Further, we disagree with the media defe ndants’ argument that the fact that the administrative sanctions referenced in the broadcasts were not more severe negated the impression created by the first senten ce that Dr. Toledo ha d engaged in sexual contact with a child. While it is possible th at a careful viewer might have realized that the administrative sanctions referenced in the broadcasts were not the most severe administrative sanctions availabl e to the TMB and might have deduced from this fact that the patient in quest ion was not a child, we must analyze the broadcasts in the context of how the average viewer, not a “careful viewer,” would have perceived the broadcasts. See Turner , 38 S.W.3d at 119 (concluding that a statement’s defamatory meaning must be viewed from the standpoint of an “ordinary” listener, not a “careful” listene r, and noting that “‘ courts must refrain16 from a ‘hair splitting analysis’ of what is sa id . . . to find an innocent meaning[.]’” (quoting Forsher v. Bugliosi , 608 P.2d 716, 722 (Cal. 1980 ))). In this respect, we do not believe that an average viewer is sufficiently familiar with the scope of the TMB’s disciplinary authority—including th e administrative rules and regulations governing the range of discip linary sanctions and penalties available to the TMB, the mitigating factors that the TMB is authorized to consider in imposing a sanction or penalty, or the effect of su ch factors on any particular sanction or penalty—such that the statements in the br oadcast would clarify in the mind of the average viewer that the patient referenc ed in the broadcast is not a child. See id. at 114 (noting that a “publicati on should be viewed ‘not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural probable effect on the mind of the average reader’” (quoting Kapellas v. Kofman , 459 P.2d 912, 920 (Cal. 1969))). We conc lude, therefore, that Dr. Toledo has presented evidence that when viewing the broadcasts as a whole in light of the surrounding circumstances, a person of or dinary intelligence would reasonably but erroneously conclude that the “gist” of the broadcast was that Dr. Toledo was punished for engaging in inappropriate conduct, including sexual contact, with a child. We also find that Dr. Toledo presen ted evidence that the gist of the broadcast was false. Dr. Toledo attached her own affidavit as an exhibit to her17 response to the media defendants’ motion to dismiss. In the affidavit, Dr. Toledo stated that the patient in question was not a child, but was “a sixty year old man who[m] [she] had been dating for a consid erable time.” This affidavit testimony constitutes clear and specific evidence th at the “gist” of the broadcasts— i.e ., that Dr. Toledo was punished by the TMB fo r engaging in ina ppropriate conduct, including sexual contact, with a child—was not substantially true because it was not actually true and was considerably mo re damaging to Dr. Toledo’s reputation, in the mind of an average listener, than a truthful statement would have been. 2 See

2 The media defendants argue that the br oadcasts are not defamatory because they accurately reported the TMB’s recitati on of its disciplinary action against Dr. Toledo. In support of this argument, the media defendants appear to rely, at least in part, on the rule adopted by several Texas courts of appeals, which, interpreting the Texas Supreme Court’s decision in McIlvain v. Jacobs , have concluded that when determining whether a report of thir d-party allegations unde r investigation is substantially true, a media defendant need not prove that the allegations are true, but must only demonstrate that the allegati ons were, in fact, made and accurately reported. See, e.g., Avila v. Larrea , 394 S.W.3d 646, 657, 6 59 (Tex. App.—Dallas 2012, pet. denied); UTV of San Antonio, Inc. v. Ardmore, Inc ., 82 S.W.3d 609, 612 (Tex. App.—San Antonio 2002, no pet.); Dolcefino v. Randolph , 19 S.W.3d 906, 918 (Tex. App.—Houston [14th Di st.] 2000, pet. denied); see also Neely , 418 S.W.3d at 64. McIlvain concerned a broadcast regarding an investigation by the City of Houston into alleged misconduct by employees in its water maintenance division. 794 S.W.2d at 15. The allegedly defamatory broadcast was made during the city’s investigation and indicated that the pub lic integrity secti on was investigating allegations that: (1) employees cared for the elderly father of the water maintenance manager on city time; (2) the employees were putting in for overtime to complete their city duties; (3) auth orities were looking fo r a gun at a water treatment facility; and (4) employees had been drinking on the job. Id . Two of the water maintenance division employees sued the broadcasters for defamation. Id

.18 Neely , 418 S.W.3d at 63; McIlvain , 794 S.W.2d at 16. Further, it implies conduct that tends to injure a living person’s re putation and thereby expose the person to public hatred, contempt or ridi cule, or financial injury. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001. It also constitutes clear and specific evidence that the broadcasts contained language that was r easonably capable of injuring Dr. Toledo in her office, profession, or occupati on; (2) charging Dr. Toledo with the commission of a crime; and (3 ) imputing sexual misconduct. See Tex. Disposal Thereafter, the city’s investigation foun d all of the allegati ons to be true. Id . at 16. The court granted summary judgment in favor of the media defendants. Id . at 15. The Texas Supreme Court affirmed the tr ial court’s ruling because the “broadcast statements are factually consistent with [the government’s] investigation and its findings[]” and were therefore “substantially correct, accurate and not misleading.” Id . at 16. Later, in Neely , the Texas Supreme Court clarifie d that it “did not establish a third-party allegation rule in McIlvain .” Neely , 418 S.W.3d at 65. Instead, the Court stated that it only “measured the truth of the allegations in McIlvain against the government investigation that found them to be true.” Id . Nevertheless, Neely expressly left open the question of whet her accurate reporting by the media is one way of establishing the substantial truth of the gist of a broadcast that repeats thirdparty allegations unde r investigation. Id. at 57 n.3, 64-65. We need not address this question, however, because the broad casts in the present case do not report third-party allegations that were “under investigation” at the time the broadcasts were published. See UTV , 82 S.W.3d at 612 (concluding that the defendant must prove that the “third[-]party allegations reported in [the] broadcast were, in fact, made and under in vestigation”); KTRK Television v. Felder , 950 S.W.2d 100, 106 (Tex. App.—Houston [14th Dist.] 1997, no wr it) (concluding that when “the report is merely that allegations were made and they were unde r investigation, [a media defendant must prove] that [the] allega tions were in fact made and under investigation in order to prove substantial truth.”). Instead, the broadcasts report findings and sanctions made by the TM B against Dr. Toledo after the TMB’s investigation of Dr. Toledo had already concluded.19 Sys. Landfill , 219 S.W.3d at 581. When an ambiguity exists about the meaning and effect of the words or wh en a predicate fact question remains about whether the statements were published or were false, a jury should determine the statement’s meaning. Klentzman v. Brady , No. 01-11-00765-CV, 2013 WL 5655845, at **14- 15 (Tex. App.—Houston [1st Dist.] Oct. 17, 2013, no pet. h.); Tex. Disposal Sys. Landfill , 219 S.W.3d at 581-83 (noting that defamation per se is generally a legal question, a jury question is presented where the defamatory character of a statement arises not from the defendant s’ blatant statements but from the impressions the defendants created and the inferences they encouraged). We hold that Dr. Toledo presented the requisite minimum quantum of clear and specific evidence, unaided by inferen ces, that the broadcasts in question were defamatory concerning her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). 2. Negligence In a defamation action, a private plain tiff must prove that a media defendant acted with negligence concerning the tr uth of the statement in question. See Neely , 418 S.W.3d at 61. The media defendant s argue Dr. Toledo cannot satisfy her burden to present clear and specific evid ence that they acted with negligence because the evidence shows th ey accurately represented th e contents of the Agreed Order and press release. Th e media defendants contend, therefore, that they are protected from liability under the “fair re port privilege,” which relieved them of20 any duty to independently investigate and report additional information not provided by the TMB, including the patient’s age and identity. 3 In Texas, the Legislature has codified th e fair report privileg e to the extent it applies to cases of libel. 4 See Neely , 418 S.W.3d at 68. Specifically, section 73.002(b)(1) of the Texas Civil Practi ce and Remedies Code provides that publications are privileged as long as they constitute “a fair, true, and impartial account of” a judicial proceeding or other official proceedings to administer the law. 5 See Tex. Civ. Prac. & Rem. Code Ann. § 73.002(b)(1)(A), (B) (West 2011);

3 This is an appeal from the denial of a motion to dismiss under the TCPA, not an appeal from the denial of a mo tion for summary judgment based on a First Amendment defense by a media defendant. Compare Tex. Civ. Prac. & Rem. Code Ann. § 27.008 with Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (West Supp. 2013). This appeal was perfected before the effective date of the most recent amendment to section 51.014. See id. § 51.014(a)(12) (authorizing accelerated appeal of the denial of a motion to dismiss under the TCPA). We address the parties’ arguments regardi ng the “fair report privilege” as it is presented by the appellants in their brief to this Court; that is, as the privilege relates to whether Dr. Toledo met her burde n to establish a prim a facie case of the media defendants’ malice or negligence as an element of her defamation claim. See id. § 27.005(c).

4 The fair report privilege has also been referred to as the “official proceedings privilege” and the “judicial pr oceedings privilege,” as applicable. See Neely , 418 S.W.3d at 68-69.

5 Texas courts have repeatedly fou nd that press releases issued by governmental agencies can trigger application of the fair report privilege. See Goss v. Houston Cmty. Newspapers , 252 S.W.3d 652, 655 (Tex . App.—Houston [14th Dist.] 2008, no pet.); Williams v. Cox Newspapers, Inc ., No. 06-09-00041-CV, 2009 WL 2340672, at *4 (Tex. App.—Texarka na July 31, 2009, no pet.) (mem.21 see also Neely , 418 S.W.3d at 68. The fair repor t privilege assesses whether the reporter’s account of the proceedings was fair, true, and impartial, even if the underlying facts being reported are untrue or defamatory. See Neely , 418 S.W.3d at 68. In other words, the accuracy of the publication is determined not by comparing it to the actual facts, but to the statements made in the official proceeding or report on whic h the publication is based. See id .; Denton Publ’g Co. v. Boyd , 460 S.W.2d 881, 883 (Tex . 1970) (“The publication would be within the privilege provided by statute as long as it pur ported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true[.]”). The privilege “only extends to statements that: (1) are substa ntially true and impa rtial reports of the proceedings, and (2) are identifiable by the or dinary reader as statements that were made in the proceeding.” Neely , 418 S.W.3d at 68. The privilege, however, “does not extend to the republication of a ma tter if it is proved that the matter was republished with actual malice after it had ceased to be of public concern.” Tex. Civ. Prac. & Rem. Code Ann. § 73.002(a); see also Neely , 418 S.W.3d at 69. The media defendants contend that the fair report privilege applies because “[t]he press release and [Agreed Order] id entified [Dr.] Toledo as a pediatrician and stated that she ‘behaved unprofessiona lly when she engaged in sexual contact op.); Freedom Commc’ns, Inc. v. Sotelo , No. 11-05-00336-CV, 2006 WL 1644602, at *4 (Tex. App.—Eastland June 15, 2006, no pet) (mem. op.).22 with a patient and became financially or personally involved with a patient in an inappropriate manner’” and because the me dia defendants “accurately reported and represented the contents of the TMB’s offi cial publications” in the broadcasts. We disagree. While both the broadcasts and the press release state that Dr. Toledo “engaged in sexual contact with a patient ” and became financia lly involved with a patient in an inappropriate manner, the br oadcasts, unlike the press release, begin with the assertion that the person who engaged in su ch conduct was a “pediatrician.” As stated above, this ed itorial addition to the broadcasts by the media defendants created an impression that could reasonably be interpreted by the average viewer as stating that Dr . Toledo was punished for engaging in inappropriate conduct, including sexual contact , with a child. The press release, by contrast, does not mention Dr. Toledo’s medical specialty and contains no information to suggest that the patient in question was a child. The broadcasts, therefore, were potentially more damagi ng to Dr. Toledo’s reputation than an account consistent with the press releas e would have been. As a result, the broadcasts were not a fair, true, and impar tial account of the TM B’s press release. We also find that the broadcasts were not “a fair, true, a nd impartial account of” the Agreed Order. First, we note th at although the media de fendants allege that they relied on the Agreed Order in prepar ing the broadcasts, the media defendants did not present evidence showing that th ey actually reviewed the Agreed Order23 before airing the broadcasts. The affida vit of the Channel 12 news director, attached to the media defendants’ motion to dismiss, states only that “[t]he information contained in [the] news repor t was gathered solely from [the] Texas Medical Board’s press release and its physic ian profile [of] Dr. Toledo.” Because the Agreed Order was accessible through a link on the physician profile webpage, it is unclear from the affidavit whether the media defendants reviewed only the content of the physician profile webpage or if they also reviewed the downloadable Agreed Order as part of that webpage. However, even if we assume that the media defendants reviewed the Agreed Order, the evidence does not conclusively establish that the broadcasts accurately reported the contents of that document. While it is true, as the media defendants a ssert, that the Agreed Order states that Dr. Toledo is a pediatrician, the nine-pag e Agreed Order references that fact in only one paragraph (under the “General Fi ndings” section) and only as background information about Dr. Toledo, not as a rele vant factor in the charges or findings against her. Unlike the broa dcasts, the Agreed Order does not include the fact that Dr. Toledo is a pediatrician in the same sentence with a description of the conduct in which Dr. Toledo was found to have engaged. Further, the Agreed Order describes the “Board Charges” against Dr. Toledo, in their entirety, as follows: At issue in this investigation are allegations of the Respondent’s unprofessional sexual mi sconduct. Specifically, it was alleged that while engaged in an intimate re lationship with JC the Respondent24 injected JC with testosterone and human growth hormone without prescriptions and documentation in a medical record. Nothing in this description suggests that “JC” is a child or that Dr. Toledo was charged by the TMB with sexually abus ing a child. Indeed, nothing in this description draws any focus whatsoever on the age of the patient. Instead, the description suggests only that Dr. Toledo was accused of administering medications to a person with whom she was intimately involved without a prescription or proper medical documentation. Similarly, the findings of fact and conclusions of law set forth in the Agreed Order suggest only that the TMB found that Dr. Toledo administered medications to a person with whom she was intimately involved without a prescriptio n or proper medical documentation and sanctioned her for such c onduct. The Agreed Order contains no findings or conclusions identifying the patient as a child or suggesting that Dr. Toledo had sexual contact with a child. Because the broadcasts, by contrast, can reasonably be interpreted to suggest to th e average viewer that the pa tient in question was a child, the broadcasts were more damaging to Dr. Toledo’s reputation than a report consistent with the Agreed Order would ha ve been. Accordingl y, it has not been shown that the broadcasts were “a fair, true, and impartial account of” the Agreed Order. The media defendants, therefore, have not established by a preponderance of the evidence at this stag e of the litigation that the “f air report privilege” applies.25 Having concluded the priv ilege has not been show n to apply, we now examine whether Dr. Toledo presented clea r and specific evidence that the media defendants acted with negligence with resp ect to the truth of the broadcasts in question. In the context of a defamation case, “a broadcaster is negligent if she knew or should have known a defa matory statement was false.” Neely , 418 S.W.3d at 72. “Negligent conduct is determined by asking ‘whether the defendant acted reasonably in checking the truth or fals ity or defamatory character of the communication before publishing it.’” Scripps Tex. Newspapers, L.P. v. Belalcazar , 99 S.W.3d 829, 837 (T ex. App.—Corpus Chris ti 2003, pet. denied) (quoting R ESTATEMENT (S ECOND ) OF T ORTS § 580B cmt. g (1977)). Defamation liability, however, “may not be predicat ed on ‘a factual misstatement whose content [would] not warn a reasonable prudent editor or broadcaster of its defamatory potential.’” Neely , 418 S.W.3d at 72 (quoting Foster v. Laredo Newspapers, Inc ., 541 S.W.2d 809, 820 (Tex. 1976)). Dr. Toledo attached copies of the TMB press release, the TMB physician profile of Dr. Toledo, and the Agreed Order to her response to the media defendants’ motion to dismiss. Significan tly, the press release, physician profile, and Agreed Order do not state the age of th e patient in question. They also do not contain any information to suggest that th e patient was a child. These, however, are the very documents on which the me dia defendants claim they relied in26 preparing the broadcasts in question. 6 As set forth above on the evidence presented to the trial court, a reasonable view of th e “gist” of the broa dcasts was that Dr. Toledo was punished for engaging in in appropriate conduct, including sexual contact, with a child. Accordingly, we conclude that Dr. Toledo presented a sufficient minimum quantity of clear and specific evidence that the media defendants acted negligently by broadcasting a report, the “gist” of which was that Dr. Toledo was punished for having se xual contact with a child, when the documents on which the media defendants admittedly relied to prepare the broadcast do not contain any informati on stating the age of the patient or suggesting that the patient was a child. Fu rther, the gist of the broadcasts would warn a reasonably prudent broa dcaster of the broadcasts’ defamatory potential. The media defendants have not shown that the trial court erred in denying their motion to dismiss Dr. Toledo’s suit at this early stage of the litigation. Because Dr. Toledo presented a prima facie ca se to the trial court, we overrule the sole issue raised in this accelerated a ppeal, and affirm the trial court’s order denying the appellants’ motion to dismiss the case.

6 As set forth above, the me dia defendants contend that they reviewed the Agreed Order in preparing the broadcasts in question. They did not, however, present evidence supporting this conten tion. Even assuming that the media defendants did review the Agreed Orde r in preparing the broadcasts, our conclusion would remain the same because, as set forth above, the Agreed Order does not state the age of the patient in question and does not contain any information suggesting that the patient is a child.27 AFFIRMED.

_______ _________________________ CHARLES KREGER Justice

Submitted on October 24, 2013 Opinion Delivered May 8, 2014 Before McKeithen, C.J., Kr eger and Horton, JJ.