DIOCESE OF LUBBOCK, APPELLANT v. JESUS GUERRERO, APPELLEE
No. 07-19-00280-CV
Court of Appeals Seventh District of Texas at Amarillo
December 6, 2019
On Aрpeal from the 237th District Court, Lubbock County, Texas
Trial Court No. 2019-534,677, Honorable Les Hatch, Presiding
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Our opinion in In re Diocese of Lubbock describes the general background from which this appеal arose. We see no need to reiterate it and, instead, incorporate the opinion into this one. Suffice it to say that Guerrero sued the Diocese for defamation and intentional infliction of emotional distress after the Diocese published a list entitled “Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor” (i.e., the List).2 The list included Guerrero‘s name. According to the Diocese, his suit is subject to dismissal because thе underlying claims fell within the scope of
TCPA
The provisions of the TCPA act like a pendulum; they impose burdens on the pаrties that swing back and forth. How they swing was described in Batra v. Covenant Health Sys., 562 S.W.3d 696, 706-08 (Tex. App.—Amarillo 2018, pet. denied), and Castleman v. Internet Money Ltd., No. 07-16-00320-CV, 2018 Tex. App. LEXIS 8559, at *5-7 (Tex. App.—Amarillo Oct. 18, 2018, pet. denied) (mem. op.). We apply that pendulum here. Yet, before doing so, it is appropriate to note that the standard of review is de novo, and the pleadings, affidavits and other evidence of record are viewed in a light most favorable to the non-movant. Batra, 562 S.W.3d at 707-08; Castleman, 2018 Tex. App. LEXIS 8559, at *5-6.
The first question is whether the causes of action fall within the ambit of the TCPA. The net cast by the statute encompasses “a legal action . . . based on, relates to, or is in response to a party‘s exercise of the right of free speech, right to petition, or right of association.”3
The first burden lies with the movant to show that the action falls within
The “right of free speech” encompasses a “communication made in conneсtion with a matter of public concern.” See
As for the statement involving “a matter of public concern,” we note that our Texas Supreme Court held the “‘commission of crime‘” such a concern. Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017). Sexually abusing “minors” is a criminal offense.4 See, e.g.,
Guerrero‘s Burden
The next burden lies with the complainant, Guerrero, and required him to present “сlear and specific evidence” establishing a prima facie case of each element of his claims. Batra, 562 S.W.3d at 706-07; Castleman, 2018 Tex. App. LEXIS 8559, at *6. The burden is met through tendering the minimum amount of evidence needed to support a rational inference that each element of his claims is true. Castleman, 2018 Tex. App. LEXIS 8559, at *7 (quoting In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015) (orig. proceeding)).
Defamation
We begin with the claim of defamation. Its elements consist of a false statement published by the defendant with the requisite degree of fault that defames the plaintiff and causes him damage. Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017); Castleman, 2018 Tex. App. LEXIS 8559, at *8. Damages need not be proved, though, where the statement is defamatory per se. Bedford, 520 S.W.3d at 904; Castleman, 2018 Tex. App. LEXIS 8559, at *8.
Guerrero contended that the Diocese falsely defamed him “by publishing his name on a list of alleged child molesters” and confirming those representations through its interviews with the local media. This suggests the presence of a defamation occurring through a series of events. They include not only what was said in the List but also said through a press release аnd ensuing interviews. As for the List, it was entitled “Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor.” Therein, the Diocese 1) apologized to “all the victims of abuse, especially minors“; 2) iterated that “this list includes the names of priests or deacons against whom a credible allegation has been made since the Diocese . . . was created“; 3) represented that “a priest or deacon‘s name only appears on the list if the diocese possesses in its files evidence of a credible allegation; and 4) explained that a “‘credible allegation‘” was “one that, after review of reasonably available, relevant information in consultation with the Diocesan Review Board or other professionals, there is reason to believe is true.” As previously mentioned, the document included Guerrero‘s name and assignments with the Diocese as a dеacon.
As for the press release issued by the Diocese, local media were told that the Diocese joined other Texas Catholic Dioceses in “releas[ing] names of clergy who have been credibly accused of sexually abusing a minor.” So too did it mention that “[t]he bishops’ decision was made in the context of their ongoing work to protect children from sexual abuse, and their efforts to promote healing and a restoration of trust in the Catholic Church.” (Emphasis added). Media interviews and coverage followed. One broadcast began with the announcement that “four priests . . . and one deacon have credible allegations against them . . . of sexual abuse against children . . . according to the Lubbock Diocese.” (Emphasis added). Guerrero was mentioned as one of the group. Elsewhere in the broadcast the Diocese‘s chancellor sought to assure the public that “the church *is* safe for children.” (Emphasis added).
As we said in In re Diocese of Lubbock, “[w]hether onе is defamed depends on evaluating not only the statement uttered but also its context or surrounding circumstances based upon how a person of
Admittedly, the List used the term “minor,” not “child” or “children.” Yet, neither the List, press release, nor explanations from those representing the Diocese explained what it meant by “minor.”5 Moreover, our common parlance tends to assign a definition to “minor” based upon age, much like the common understanding of the words “child” and “children.” In reference to human beings, “minors” are commonly understood to be under age people or those below the age of majority or legal responsibility. See Minor, MERRIAM-WEBSTER‘S COLLEGIATE DICTIONARY 791 (11th ed. 2003) (defining minor as “not having reached majority“); Minor, BLACK‘S LAW DICTIONARY (6th ed. 1990) (defining minor as “[а]n infant or person who is under the age of legal competence“). In the everyday mind, they are those who are too young to legally vote, buy cigarettes, buy alcohol, or consent to sex, for instance. That common perception of the term generally does not include adults older than 17 or 21 depending upon the law involved. As for the words, “child” or “children,” they not only have a meaning similar to “minor” in our everyday parlance but often are interpreted as describing those of very young age, such as infants, toddlers, and pre-teens. See Child, MERRIAM-WEBSTER‘S COLLEGIATE DICTIONARY 214
(11th ed. 2003) (defining child as “a young person especially between infancy and youth” and “a person not yet of age“).
We find little difficulty in concluding that one who intermixes all those terms while speaking can readily and reasonably lead the listener to believe that the subject being discussed encompasses people undеr the legal age. Doing such can reasonably lead others to think the speaker is discussing infants, toddlers, pre-teens and even teenagers, not adults. So, the entire context of the conversation initiated by the Diocese about sexual assault upon “minors” by clergy would lead “a person of ordinary intelligence . . . [to] perceive” that those clergy assaulted not adults but kids, youths, and other people under the age of majority. And, thе Diocese named Guerrero as one of those clergy against whom there existed a “credible allegation” of abusing “minors.”6
That leaves us with the two remaining elements of defamation, which elements are the statement‘s utterance with the requisite fault and damages. Regarding the latter, authority tells us that falsely accusing one of committing a crime is defamatory per se, Dallas Morning News, Inc., 554 S.W.3d at 638, as is accusing one of engaging in serious sexual misconduct. See, e.g., Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.—Houston [1st Dist.] 2012, рet. denied) (holding as defamatory per se an accusation about the sexual molestation of a child). The accusation at bar comes within both categories. Not only is it a factual statement subject to objective verification but also an accusation about criminal and serious sexual misconduct. Thus, Guerrero need not prove damages.
As for the requisite fault, the standard is negligence where the plaintiff is a private, as opposed to рublic, figure. Bedford, 520 S.W.3d at 904; D Magazine Partners, L.P., 529 S.W.3d at 440. In what category Guerrero falls is a question of law. Klentzman v. Brady, 312 S.W.3d 886, 904 (Tex. App.—Houston [1st Dist.] 2009, no pet.). No one suggests that he was
Under the standard of negligence, a defendant acts unreasonably if he knew or should have known that the defamatory statement was false. D Magazine Partners, L.P., 529 S.W.3d at 440. The record before us contains sufficient evidence to make a prima facie case of the Diocese‘s negligence in publishing the purportedly false defamation. We find that evidence in its own invocation of the meaning of “minor.” The List itself used the word “minor” when alluding to a credible allegation of sexual abuse. And, in so using the word, the Diocese аllegedly intended to assign it the definition accorded under canon law, as revealed through the affidavit of the Diocese‘s bishop. Again, that definition described a “minor” as “a person who habitually lacks the use of reason.” Arguably, then, a “minor” encompasses not only those under the age of majority but also adults who habitually lack the use of reason. Knowing this definition, the Diocese nonetheless incorporated the term “children” intо its public rhetoric about the List. Again, one media outlet announced that “according to the Lubbock Diocese,” “four priests . . . and one deacon have credible allegations against them . . . of sexual abuse against children.” (Emphasis added). Additionally, a Diocese representative also told the outlet that the church was “safe for children.” (Emphasis added). So too did the Diocese declare in its January 31st press release that it was working “to protect children from sexual abuse.” (Emphasis added). While all “children” may be minors within the canon law‘s definition of “minor,” not all “minors” are children per that same definition.7 Yet, the purported “credible allegation” against Guerrero involved an adult around 41 years old.
Given our earlier discussion about the general public perception of the word “children,” the Diocese‘s multiple references to “children” while discussing the List, and its knowledge that Guerrero‘s supposed victim was an adult, there is some evidence of record from which a fact-finder could reasonably infer that the Diocese was negligent. There is evidence that the Diocese knew or should have known 1) the difference between “minors” and “children” while referring to “children” and 2) that by speaking about sexual abuse of “children” the public could reasonably perceive the discussion to be about clеrics who sexually abuse infants, pre-teens, and those under the age of majority, not adults. Thus, evidence exists of record from which one could reasonably infer that the Diocese publicly portrayed Guerrero has having abused “children” or people under the age of majority.
In short, Guerrero carried his burden imposed by the TCPA. The record contains clear and specific evidence creating a prima facie case on each element of defamation.
Intentional Infliction of Emotional Distress
Regarding the claim of intentional infliction of emotional distress, we need not dwell upon it for long. In lieu of our engaging in an extended explanation regarding its components and whether the
Here, neither party cited us to any evidence indicating that the Diocese intended for Guerrero to experience emotional distress or anticipated that such distress would be the primary consequence of the allegеd defamation. Nor did our own search of the record uncover any. What it did reveal, though, was that the facts underlying the allegation of severe emotional distress were the very same ones forming the basis of Guerrero‘s defamation claim. In other words, his alleged distress derived from being defamed. So, like Bilbrey and Warner Bros., the record before us lacks prima facie evidence of an element to Guerrero‘s chose in action sounding in the intentionаl infliction of emotional distress.
The Diocese‘s Defense
Having found that one of Guerrero‘s causes of action survives dismissal, we now determine if the Diocese raised some defense or other basis barring recovery. It attempted to do so by asserting the doctrine of ecclesiastical abstention. But, as we explained in our earlier opinion in Cause No. 07-19-00307-CV, the doctrine does not apply to the circumstances at bar.
Conclusion
In ordering that the motion to dismiss be denied, the trial court did not address individually the two causes of action Guerrerо averred. Nevertheless, we affirm its order to the extent that it retained the claim of defamation but reverse it to the extent that it retained the cause sounding
Brian Quinn
Chief Justice