*1 damages. claims in Issues Four and Five that the the award of Issue is over- Six granted trial court erred when it relief for ruled. cause of and
Searcy’s fraud action the Seven, In Issue argue SCS and Spoon damages awarded connection with that that the trial court erred when did not claim. segregate recoverable attorney’s fees from Six, In Spoon “challenge Issue SCS and brief, unrecoverable reply ones. their legal sufficiency the factual of the and SCS and Spoon acknowledge did support evidence to the Trial Court’s not ask the trial court segregate trial $49,470 damages.” award of as actual court fees. attorney’s request Because no They argument base their evidence made, for segregation was Issue Seven is findings and the of the trial court to the Solis, overruled. Green v. Inc. Int'l effect that items of four the contract were (Tex.1997) (in 384, 389 completed: purchase and install the con- objection absence of an fact foundation; crete purchase and install a attorney’s fees are not segregated, ob purchase metal and install building; six waived). jection is windows; purchase and and install three judgment the trial is af- court They exterior doors. maintain that firmed. (the $49,470 award Searcy amount of the price paid Spoon contract and SCS
($61,470) the refund paid Searcy less
($12,000)) ignore is to the value of the four they completed
items that and which
Searcy benefited. found,
The trial court also evidence, each finding supported by MIRANDA, Appellant that, though even and Spoon complet SCS work, ed some that work completed Stephen BYLES, Appellee. unsatisfactorily several reasons. Other partially completed, items were and SCS No. 01-10-01022-CV. and Spoon performed no work on other Texas, Appeals Court of items. court Searcy The trial found that (1st Dist.). Houston received or no the money little value for she paid Spoon. to SCS and There is no 25, 2012. Oct. testimony other of the of the value items Rehearing/En Banc Reconsideration as completed. We hold Nov. Denied legally factually is both sufficient to that, judgment in the ab objections, sence of other
correctly computed Searcy’s economic 17.50(b)(1)
damages under Section
DTPA. than argument Other related
to mental anguish damages posi that,
tion taken if Spoon SCS damage incorrect,
economic award was
then damages improp additional
er, there been challenge has no other *3 Nickson, Appellant.
Matthew Paul Herndon, Herndon Michael L. Firm, PC, Lilly, & Lilly, Earle S. Newman TX, Ness, L.L.P., Houston, Appel- Van lee. KEYES,
Panel consists of Justices HIGLEY, and MASSENGALE. *4 OPINION ON REHEARING HIGLEY, Justice. LAURA CARTER issued memorandum originally We our February opinion appeal in this on Miranda, Jesus has filed Appellant, 2012. rehearing banc a motion for and for en grant motion for reconsideration. We judgment, our rehearing, vacate earlier previous and issue opinion, withdraw our opinion place. in its dismiss We motion for en banc reconsideration moot. challenges
Miranda the trial court’s judgment holding publish- for liable ing statements determined to be defamato- issues, ry per argues In three se. (1) defamatory the statements were not (2) se; per Stephen prove failed to false; (3) legally is statements there factually insufficient (4) damages; award neither of actual actionable the incre- under theory. mental harm We affirm.
Background September Some time Valerie in Harlin- Villarreal came her home gen step- home of her mother father, Stephen Byles, Lisa Villarreal and to be Sealy, supposed Texas. What was stay. a short visit turned into an extended time, At Valerie relied Lisa Stephen financial She was support. gang also mem- known to be friends with in drugs bers and was and drink- Valerie involved took L.S. a hospital to be ing alcohol. evaluated on Monday, October hospital The required the authorities to be visit, sister, During the Valerie’s Vanes- alerted before an examination could be Villarreal, sa That night, turned 16. Vanes- performed, so Valerie contacted the Child sa snuck out spent of the house and time Protective Services division of Depart- gang with some of Valerie’s friends. Val- ment of Family and Protective Services initially knowing erie where denied Vanes- (“CPS”). L.S. was interviewed the doc- sa was. Eventually, Valerie became con- They tors. asked her if she had been cerned, knowing admitted to who she was touched, and Stephen’s L.S. said name. with, began assisting her mother in hospital doctors at the attempted to locating up Vanessa. Vanessa showed la- physically L.S., examine but she would not ter the day, next under the influence of let them. The examination was discontin- drug. some ued. This led to fight between Valerie and *5 After the reported, incident was CPS Stephen. Lisa and and Stephen Lisa told began an investigation into the allegations. Valerie she to lose going was some of her The Austin County Attorney’s District Of- financial she going and that was began fice also an investigation into the have to Stephen return home. then left allegations. Singapore for a trip business the next day, October October, Later in took Jesus Valerie and L.S. to a barbecue at house of some 5, 2007, On Friday, October Valerie’s friends. Jesus introduced L.S. to those at L.S., daughter, Stephen her that told had the barbecue as the child that Stephen placed vagina. his hand on her L.S. was molested. staying Valerie was with Jesus three outcry. at the time of the Valerie around this time and heard him telling reported upset that L.S. not was when she people telephone that Stephen had told this to Valerie. told her Valerie moth- molested L.S. er about what said. In L.S. had the dis- cussion, Lisa she told Valerie still needed On October Valerie and Jesus to leave and get that Valerie should L.S. took L.S. to the Children’s Assessment examined if she believed the statement. Center. The people at center first they performed interviewed L.S. Then Miranda, brother, Jesus Lisa’s found out examination, physical but the examiners about the outcry day. the next While he concluded that there no physical was indi- had not been in the lives of involved Valer- cation of whether had sexually L.S. been ie and outcry, L.S. before he became molested. very following outcry. involved Jesus told going Valerie that he to call Shortly was CPS after the to the visit Children’s if she did Center, not. told him Valerie she Assessment told Jesus Valerie that planned take L.S. to examined. any he did not need her more. Valerie Harlingen. went back home to While she Jesus also Lisa. Lisa called told him in Harlingen, called her Jesus several she did not want to to him talk about it. times and told her that she would lose her began telling Lisa about how if things kids she did not certain do up Stephen. could team get At the threatened to call CPS on Valerie. conversation, end of the he told Lisa that he would get Stephen 13th, 2007, Lisa, her and and that she Around November go Stephen. would down with request, took possession Valerie’s Valer- brother, that, January, if Jesus told his told Lisa Also Valerie had ie’s children. children, Miranda, Jr., take the Valerie mo- Stephen she did not Juan had and, addition, them to Valerie felt give CPS. that a lested L.S. said and could not anymore stable she was not Stephen doctor confirmed that had sexual- they need- the attention give the children he ly L.S. claimed that molested Lisa separately lived from Stephen ed. happened. knew that possession of the children. once she took attorney ultimately repre- The amicus custody of Proceedings for Lisa to take family court that the children sented to two children were initiated Valerie’s Stephen’s in Lisa and would be better off attorney ap- An Houston. amicus possession. May after in that case to look the best pointed temporary order portion lifted the of its interest the children. being prohibited Stephen possession After took of the chil- Lisa presence of the children. Lisa was two dren, told her that Jesus wanted to Valerie custody of children. awarded Valerie’s Amber Alert on children. issue an time, allegations Around that arose Eventually, investigations by CPS trial, kidnapped- Lisa the children. At County Attorney’s Austin District that he could recollect Jesus testified pressing Office were concluded without attorney that telling the district Lisa had wrongdoing by claim of charges the children. kidnapped Stephen. *6 events, fre- During this course of Jesus against filed on Stephen a suit Jesus Lisa, or accu- quently making called texted trial, At the time of December 2008. message on satory In one left statements. Stephen per asserted claims slander voicemail, her he Lisa that he and told se, quod, per slander and intentional inflic- way to the police Valerie were on their trial, At tion of emotional Ste- distress. to going station and that police phen limited his to se per claim slander her. take Valerie’s children from In that (1) the Jesus message based on voicemail said, message, going also “It’s not “Stephen’s left Lisa hand on stating, terms Ste- your anymore, be under Lisa. your vagina what granddaughter’s isn’t money isn’t what dictates this. Ste- phen’s (2) this” Jesus’s representa- dictates and. your vagi- phen’s granddaughter’s hand on tion brother Juan a doctor I OK? na isn’t what dictates this. dictate Stephen sexually confirmed that mo- now, honey.” L.S. lested custody temporary A on hearing of Val- January erie’s was 2008. children held agreed trial. parties The bench Valerie, hearing, Before called two-day began May The 2010. telling saying, and her not back down 18, 2010, its May On the trial court issued your time penetrates “What if next he law. findings of fact and conclusions of daughter?” hearing to the Jesus came fact, findings The in relevant con- part, well. He told Valerie that reason following: tained the taking try Lisa children was to was 6. was a wit- Ste[ph]en Byle[s] credible case. en- help Stephen’s The clear, testimony posi- ness. His tered an Lisa indefinite tem- giving order tive, and direct. His demeanor on custody of the The order porary children. trust- the witness stand exhibited being Stephen also around restricted honesty. children. worthiness 7. Jesus Miranda not a credible participating judi- otherwise in a testimony was often cial proceeding arising witness. His from a re- evasive, contradictory, implausi- port, petition, investigation ble. His on the alleged demeanor witness or neglect. child abuse suggest stand did not that he was $25,000 29. An award of would fairly trustworthy. reasonably compensate 8. Ste[ph]en Byle[s] brings this lawsuit Ste[ph]en Byle[s] for the mental private
as a individual. anguish and emotional damage 9. Jesus is not a Miranda member of reputation he suffered as a media. print or broadcast result of Jesus Miranda’s defamato- ry conduct. concerning 10. The issues defamation only Ste[ph]en Byle[s]’s involve in- interests, public dividual inter- $50,000 31. An award of should be as- ests. sessed against Jesus Miranda 12, 2007,
11. On December Jesus Mi- Byle[s] awarded to Ste[ph]en as exem- randa a statement published stat- plary damages. ing hands on “Ste[ph]en’s your law, conclusions of relevant part, vagina isn’t granddaughter’s what following: contained the dictates this.” 6. The Defamatory Statements consti- 12. In January Jesus Miranda tute defamation se per because published a statement to Juan Mi- impute sexual allege misconduct and randa that a doctor had examined Ste[ph]en Byle[s] committed a L.S. and that doctor had con- criminal act. had been sexually firmed that L.S. Ste[ph]en Byle[s].
molested Defamatory Since the Statements *7 Jesus Miranda constitute defamation 13. Jesus Miranda’s statements de- ¶¶ se, per Byle[s] may Ste[ph]en recov- scribed in 11-12 of the Findings er Statements”) general proof without (“Defamatory damages Fact injury. defamatory were concerning plain- tiff. Defamatory
14. The Statements were 261.106(a), § 14. Under Tex. Fam.Code false. person good a who in faith reports investigation
or assists in the 17. As a result of Miranda’s de- alleged or child abuse who testifies statements,
famatory Ste[ph]en judicial or a participates pro- in Byle[s] has endured mental and ceeding arising report from a or anguish, emotional been alleged shunned child investigation of abuse family, from his wife’s and suffered liability is immune from civil reputation. injury to his might otherwise arise. 261.106(c), §
15. Under Tex. Fam.Code 28. Defamatory person Neither State- a who acts bad faith or
ments purpose reporting nor were malicious [other statements] assisting alleged neglect made while or is investi- child abuse not gation alleged of a child immune from civil or criminal lia- neglect bility. abuse or or while testifying 550 defamatory is lia- “An oral statement not immune from is [Miranda] one of per if it falls within under se
bility [Byles]’s for claims (1) imputation following categories: § 261.106. Tex. Fam.Code crime; (2) a loathsome dis imputation of $25,000 Stephen judgment awarded (3) office, ease; person’s to a busi injury damages per the slander se in actual (4) ness, imputa calling; or or profession, $50,000 exemplary damages.1 claim Downing tion of sexual misconduct.” v. Bums, 415, (Tex.App. 424 348 S.W.3d Per Se Slander 2011, pet.). no Dist.] “[A]n -Houston [14th issue, argues of his second part defamatory allegedly publication should be the statements that formed bases light a whole in of the sur construed as defamatory per se be- liability were not how upon circumstances based rounding objectively verifiable. cause per person ordinary intelligence would Television, v. ceive it.” Turner KTRK Applicable of Review & A. Standard (Tex.2000). Inc., 103, 114 This 38 S.W.3d Law Times, Inc. objective is an test. New v. capable (Tex.2004). “Whether words are Isaacks, 144, 157 146 S.W.3d defamatory plaintiff attrib meaning “For a statement to be action question
utes to them is a
of law for
defamation,
expressly
able in
it must
Frost,
414, 417
14 S.W.3d
court.” Cecil
impliedly
objectively
assert facts that are
2000, no
(Tex.App.-Houston
Dist.]
[14th
verifiable.” Palestine Herald-Press Co. v.
(citing
Smith
pet.)
Musser v.
Protective
Zimmer,
504,
(TexApp.-
509
653,
(Tex.
Servs., Inc., 723 S.W.2d
654-55
denied)
2008,
Tyler
(citing Milkovich
pet.
1987)).
subject
Questions of law are
to de
Co.,
19,
v. Lorain
497 U.S.
Journal
Humphreys,
novo review.
In re
(1990);
551 (a) 628, acting good Hosp., faith who 95 person (Tex.App.-Hous A S.W.3d 646 investigation
reports 2002, or assists ton no pet.) (holding [1st Dist.] alleged abuse or of a child issue in for rehearing motion is waived if or who testifies or otherwise neglect original brief “is not sufficient to acquaint judicial a participates proceeding the Court issue and does not arising report, petition, from a or argument present an allow alleged investigation of child abuse issue”). court to decide civil neglect is immune from rely Jesus cannot on the dis liability that other- might criminal raising sent’s issue to avoid waiver. or imposed. wise be incurred It is well established Texas law that “an 261.106(a) added). §Id. (emphasis appellate court cannot reverse a trial correctly points The dissent also judgment properly assigned court’s absent im “Immunity liability out that from Co., Wilson, error.” Pat Baker Inc. v. 971 princi from two munity suit are distinct 447, (Tex.1998); S.W.2d 450 accord Vawter Jones, ples.” Dep’t Transp. Tex. v. 8 263, (Tex.1990); Garvey, v. S.W.2d 264 786 636, (Tex.1999). Finally, 638 S.W.3d Duke, Authority San Jacinto River v. 783 recognizes “[ijmmunity dissent even (Tex.1990). 209, S.W.2d 210 An exception defense, liability from is an affirmative to this rule is that an can appellate court immunity deprives while from suit concerning consider matters trial jurisdiction.” Dep’t matter Tex. subject jurisdiction subject-matter court’s sua Miranda, & v. 133 Parks Wildlife Millwork, sponte. Inc. Volume v. W. (Tex.2004); City 224 see also Corp., Hous. Airport 218 S.W.3d 726 Williams, Hous. of (Tex.2011) (Tex.App.-Houston pet. [1st Dist.] “[bjecause immunity (holding denied) (holding subject-matter “[l]ack of liability an from constitutes affirmative jurisdiction is fundamental error that this defense, bar, jurisdictional not a im may Court raise and properly recognize suit to munity properly from is before us sponte”). already recognized sua We have day”); v. Tom County Hosp. Harris Dist. liability from immunity claim Reg’l Hosp., ball Miranda, jurisdictional. (Tex.2009) (holding “immunity from liabili 224; Disk, County Hosp. S.W.3d at Harris ty jurisdictional”). is not 842 (holding “immunity S.W.3d at from assuming deciding liability jurisdictional”). According Even without is not presented pre that Miranda properly it ly, was not issue that this Court could court, served this issue in it is raise sua sponte.
undisputed that Miranda never raised this Nevertheless, dissent continues appeal.2 issue in his brief on the merits on immunity liability jurisdic- from treat as a Instead, the it the first dissent raised Although “protects tional bar. *9 time, attempts adopt and Jesus to it in his immunity not judgment,” liability from “is motion rehearing. for jurisdictional.” County Hosp. Harris Disk, Assuming 283 at 842. with-
An issue for the time in S.W.3d raised first deciding properly for out asserted rehearing a motion is waived. Coastal trial, asserting this affirmative defense at Liquids Transp., Cnty. Ap L.P. v. Harris (Tex. Disk, not it praisal an affirmative defense does convert 46 S.W.3d 885 2001); assuming jurisdictional also v. into a issue. Even see Wheeler Methodist immunity any- where the 2. No reference to is made in Miranda's brief on merits.
552 trial, improp- a jury question In if jury trial court to deter- error for the it was erly jury apportion liability the asks not apply 216.106 did mine that section impermissi- and permissible based on both judgment against and enter liability, objection to the ble bases for him, jurisdictional errors. these were not question form must be raised in of the raise not his affirma- Because Jesus did appeal. the for preserve order to issue immunity liability on of tive defense A.V., (Tex.2003); re 362 113 S.W.3d is juris- and the issue not because appeal Smith, v. 236 Cnty. Harris 96 S.W.3d dictional, the we reach merits of cannot (Tex.2002). Otherwise, any complaint be a for argument and it cannot basis sufficiency about of the evidence to reversing judgment. court’s See the determination is based Co., (holding at 450 Pat Baker 971 S.W.2d A.V., as a In re determination whole. a trial appellate court cannot reverse “an Oldham, 362; v. S.W.3d at Thomas judgment properly assigned court’s absent (Tex.1995). 352, 360 S.W.2d error”). corollary to that in bench rule trials findings for party is a must ask additional Analysis C. asking of fact conclusions of law for a Stephen’s per claim of slander se apportionment findings detailed of be- based on two of Jesus’s statements: was impermissible permissible tween the (1) message the voicemail Jesus left Galvan, liability. Tagle bases stating, “Stephen’s your hand on Lisa (Tex.App.-San Antonio S.W.3d isn’t what dictates granddaughter’s vagina pet.). request no Failure to addi- (2) representation Jesus’s to his this” findings tional waive er- specific will ror, Juan doctor confirmed that any sufficiency analysis brother that a is limited Id. Stephen sexually molested L.S. determination a whole. findings not ask for Jesus did additional is The second statement actionable as appor- conclusions law for fact and se. intel- per person ordinary slander A damages tionment of between the two perceive impute it to both a ligence Accordingly, statements. our review of Dawn- crime sexual misconduct. See damage sufficiency award limited to Turner, 424; ing, 348 id.; award damages as a whole. See Furthermore, is a at 114. statement A.V., In re Even if at 362. we objectively statement that can be factual were that the to hold first statement was Zimmer, 257 S.W.3d at verified. se, then, defamatory per analysis our We do not need to determine award damage would be same. whether first statement actionable result, analysis As a of whether the first per well. While the trial as slander se as per se is not defamation court, in its fact and findings of conclusions ap- necessary disposition for final law, determined that both statements peal. Tex.R.App. (requiring P. 47.1 per se actionable as slander individu appellate every courts address issue ally, damages for both state necessary awarded disposition raised and final ments without between the apportioning appeal). party objected
two statements. Neither Falsity findings or asked for additional of fact and *10 issue, P. 298 conclusions law. See In the remainder of his second Tex.R. Civ. (allowing party Stephen prove argues to ask court file addi failed facts). findings that the statements were false. tional amended
553
A.
of Review
Standard
sions drawn from the facts to determine
their correctness. BMC
Belgi-
Software
sufficiency
We review the
of the
um,
Marchand,
v.
789,
N.V.
83 S.W.3d
794
supporting
evidence
a trial court’s chal
(Tex.2002).
In an appeal from a bench
lenged findings
of fact
applying the
trial, we review a trial court’s conclusions
same standards that we use in reviewing
legal
novo,
of law as
questions, de
and will
the legal
sufficiency
or factual
of the evi
uphold them on appeal if the judgment can
supporting jury
dence
findings. Catalina
be sustained on any legal theory supported
Blasdel,
295,
(Tex.1994).
v.
881 S.W.2d
297
Id.;
Moers,
evidence.
In re
104
When the appellate record includes the
609,
S.W.3d
611 (Tex.App.-Houston [1st
record,
reporter’s
the trial court’s factual
2003,
pet.).
no
If
Dist.]
we determine that
findings, whether express
implied,
are
erroneous,
a conclusion of law is
but that
not conclusive and may
challenged
the trial court nevertheless rendered the
legal
sufficiency
and factual
of the evi
proper judgment,
the error does not re-
dence supporting them. See Middleton v.
quire
Software,
reversal. BMC
83 S.W.3d
Kawasaki
Corp.,
42,
Steel
687 S.W.2d
44
at 794.
(Tex.App.-Houston
1985), writ
[14th Dist.]
n.r.e.,
(Tex.1985).
refd The test for legal sufficiency is “whether trial, In a bench the trial the evidence court deter at trial would enable reason- credibility mines the of the witnesses able and fair-minded people to reach the weight given to be their testimony. verdict Keller, under review.” City 168 Woods, 720, (Tex. Woods v. 198 S.W.Bd 726 S.W.3d at making 827. In this determina- denied); App.-Beaumont tion, pet. see we credit favorable if evidence a rea- Wilson, City also Keller v. 168 could, S.W.3d sonable fact finder disregard (Tex.2005). 819 resolving In contrary factual unless reasonable fact disputes, the trial may believe one finder could not. Id. If the evidence falls others, witness and disbelieve may and it within the zone of reasonable disagree- ment, resolve inconsistencies a witness’s then we may not substitute our testimony. Kuhlmann, McGalliard v. 722 judgment for that of the fact finder. Id. at (Tex.1986). S.W.2d In making 822. The fact finder is the judge sole determinations, credibility credibility fact-finder of the witnesses and the weight ignore “cannot undisputed testimony give testimony. their Id. at 819. clear, direct, positive, credible, otherwise reviewing a factual sufficiency challenge, free from contradictions and inconsisten we consider weigh all of the evidence cies, and could have readily been contro supporting and contradicting the chal- Keller, City verted.” lenged finding and set aside the finding The fact-finder thus is not “free to believe if the evidence is so weak as to make testimony conclusively that is negated by the finding clearly wrong manifestly However, undisputed facts.” Bain, Id. if the fact unjust. Cain reasonably (Tex.1986); finder could Plas-Tex, believe the testi see Inc. v. U.S. Steel mony of (Tex.1989). one witness or Corp., disbelieve the testi witness, mony of another appellate Analysis B.
court “cannot impose opinions own [its] contrary.” Id. at 819. Before addressing the merits of An appellant may issue, challenge a trial we must first address who had court’s conclusions of law for factual suffi- the burden of proof high and how ciency, may but we legal review the conclu- burden was. party Which bears the bur-
554 that, he burden, argues though even
den,
Jesus also
height
as well
the
defendant,
not be
he should
is a non-media
falsity
or
of the statement
truth
prove
defen
differently from a media
treated
plaintiff (pri-
the
on the
of
depends
status
re
argument,
his
Jesus
dant. To
vate,
public), the
public,
limited-purpose
dissenting
written
opinion
lies on a
(media
or non-
of
defendant
status
in the
States Su
Brennan
Justice
United
media),
(public
of issue
type
v. Lorain
preme
See Milkovich
Court.
private).
1,
Co.,
2,n.
110 S.Ct.
Journal
497 U.S.
28
challenge
does not
trial court’s
Jesus
(1990)
2695,
2, 111
1
n.
L.Ed.2d
2708
that,
suit,
this
finding
purposes
of
Ste-
(Brennan, J., dissenting). Regardless of
is a
private plaintiff
is a
phen
argument
the merits of Justice Brennan’s
assert,
He does
non-media defendant.
dissent,
in his
we are bound to follow
however,
public
that this is a
issue instead
of
States
majority decisions
the United
disagree.
one.
private
of a
We
questions of federal
Supreme
Court
Twedell, 158
Ex Parte
constitutional law.
this is a
Jesus asserts
(1958).
214,
834,
Tex.
844
309 S.W.2d
it involves
public
allegations
issue because
has drawn a
Supreme
United States
Court
abuse,
of sexual
which—Jesus asserts—
between media and non-media
distinction
public impor
a
“implicates
question
Newspa
Philadelphia
defendants.
See
public
An
not a
issue
tance.”
issue is
767, 776-77,
475
pers,
Hepps,
Inc. v.
U.S.
controversy
because
of inter
simply
it is
(1986)
1558, 1564,
106
555 (Tex.App.-Houston Damages 318 17 n. 9 S.W.3d denied); see pet. [1st Dist.] also Tex. issue, first argues Jesus the evi- (estab § Civ. Prac. & Rem.Code Ann. 73.005 dence is insufficient to sustain award of lishing in libel truth of statement action for any damages more than a nominal amount. defense) (Vernon 2011); as a Randall’s Mkts., Johnson, Food Inc. A. of Standard Review (Tex.1995) (holding 646 affir truth is As is challenging legal mative defense to slander suits between individuals). sufficiency award, factual damage private we apply legal the same factual suffi- do not need to this We resolve ciency standards stated in the section on conflict, Regardless however. of who car falsity. case, proof ried the burden evidence shows that second statement Analysis B. was false. $25,000 The Stephen awarded second statement asserted damages in actual for his claim of slander doctor had confirmed that L.S. been had $50,000 per se exemplary damages. sexually by Stephen. Only molested one For the actual damages, the trial court medical examination was completed indicated the award compensation “for L.S. The examiners concluded there anguish mental emotional physical was no indication of whether L.S. damage reputation that he suffered as a sexually been molested alone let result of defamatory Jesus Miranda’s con-
whether the molestation had been done duct.” Stephen. argues no there is analyze We do not need to whether that Stephen any damage suffered to his first false rea- statement was for the same reputation based on the two statements analyze son we did not need whether formed bases for his claim. He the first statement was se. per defamation argues also that “there is no evidence that The trial court awarded both damages for [Stephen] anguish suffered mental as a apportioning statements without between result Finally, of the statements.” he ar- the two statements. Jesus did not ask that, gues because the trial court’s award additional of fact findings and conclusions sustained, damages of actual cannot be apportionment law for be- damages exemplary damages award of must also be tween Accordingly, the two statements. overturned. our damage review of the award is limited sufficiency damages as a award “Our presumes law that state whole regardless whether first are defamatory per injure ments that se statement was false. See Tagle, reputation the victim’s him and entitle A.V., 516; S.W.3d at In re S.W.3d general damages, including recover dam ages of reputation for loss and mental that, regardless
We hold
anguish.” Bentley,
who carried
at 604.
This
establishing
falsity,
the burden truth or
means that a defendant
to a plain
is liable
there is sufficient evidence in the
tiff
defamatory per
record
for statements that are
finding
the trial court’s
that the
se “even in
absence of
evidence of
second
Downing,
false.
overrule
harm.”
at 425. “At
We
minimum,
Jesus’s second
plaintiff
issue.
is entitled to a
*13
burden, however,
to
Stephen’s
was
sum,
limited
that
not
but is not
to
nominal
prove
damages
the
he suffered. See Bent-
amount,
to
may choose
award
jury
and the
”
ley,
Assuming
pre-
Id,.;
94 S.W.3d
are
see
damages that
‘substantial.’
rebuttable,
it
damages
of
sumption
at 581
Disposal,
also Texas
dis-
have been Jesus’s burden to
claims,
se
per
(holding for defamation
Hotr-Hed,
prove
damages.
recover, “at
to
a mini-
plaintiff
entitled
is
S.W.3d at 730.
mum,
Accordingly,
damages”).
nominal
required
present
to
evi-
Stephen
not
evidence that Ste-
Jesus did introduce
damages
gen-
of
to recover
dence
order
medi-
phen
sought counseling
had not
reputation
as
damages
eral
such
loss
any
anguish
help
to
him with
mental
cation
anguish.
and mental
not
he
have
does
may
suffered. This
prove, though,
Stephen
that
not suffer
did
El-Khoury to establish
Jesus relies on
only
not
anguish.
mental
It
means he did
to
it
establish
Stephen’s
that was
burden
counseling
a result.
seek
or medication as
acknowledges,
damages.
his
As Jesus
Because there is no evidence of whether
however,
per
a
El-Khoury was defamation
mental
Jesus
Stephen
anguish,
suffered
at 85 n. 5. The
quod case. 241 S.W.3d
carry any
disproving
burden
failed to
in a
prove damages
defama-
plaintiff must
damages.
Disposal,
case.
per quod
tion
Texas
then,
Elr-Khoury,
is not
its
S.W.3d at 580.
The trial court did not subdivide
applicable
damages
anguish damage
on this basis.
award mental
damage to
reputation.
Jesus did
acknowledges that there is
file
request
a
for additional or amended
for statements
presumption
damages
a
fact
Ac-
findings of
or conclusions of law.
defamatory per
argues,
that are
se. He
cordingly,
any complaint
he has waived
however,
is
presumption
that this
rebutta-
to
regarding
sufficiency
the evidence
any
ble. We have not found
Texas cases
separate damage findings. See
support
presumption
whether
that address
Instead,
Tagle,
at 516.
a suffi-
damages
defamatory
se statements
per
complaint
challenging
limited
ciency
is
Nor
do we
is rebuttable
irrebuttable.
sufficiency
evidence
here,
need to
be
question
resolve
damage
award as a whole. Id.
cause,
is
presumption
even if the
rebutta-
hearing testimony
ac-
After
that Jesus’s
ble,
Stephen
to establish that
Jesus failed
Stephen’s
cusations
caused Lisa’s and
was not
his
harmed
statements.
family
alienation from the rest of Lisa’s
a
presumption
When
rebuttable
longer
traveling
felt
and that
no
safe
exists, the burden of
evidence
producing
functions,
valley
to the
the trial
against
party
pre
shifts
whom
in-
Stephen
court found
had suffered
Hot-Hed.,
sumption
Ine. v.
operates.
Safe-
Nevertheless,
jury
reputation.
his
we
(Scotland), Ltd.,
house Habitats
not disprove
have held that Jesus did
Ste-
730 (Tex.App.-Houston [1st
if
phen’s
anguish damage.
mental
Even
denied).
This
pet.
means
Dist.]
we agreed
disprove
that Jesus did
Ste-
been
burden to dis
would have
Jesus’s
phen’s damage
reputation,
he is still
Stephen
any damage
prove
suffered
damages
limited to a
as
only
review the
as a
result of
statements.
request
his failure
whole because of
is no
court’s
argues
damages
“there
subdivision
the trial
law. Id.
anguish
findings
mental
of fact and conclusions of
[Stephen] suffered
agree.
we
com-
Accordingly,
a result of the statements.” We
It
consider
plaints
damage
about
award as a
outcry
abuse,
of child sexual
coupled with
whole.
the child’s mention of the name of the
alleged abuser to an
doctor,
examining
only argument
that Jesus raises to
just about as damaging to a suspect’s rep-
damages
as a whole
argument
is his
utation as are statements that
suspect
that,
Stephen
because
did not present evi-
*14
abuser,
is a child
and that a doctor has
dence of
damages,
his
he is limited to
confirmed the same.”
disagree.
We
nominal damages. We disagree.
plain-
A
tiff in a defamation-per-se case
There is a
who does
distinct difference between a
present
by
evidence of
damages
three-year-old
is entitled
child that a
to,
minimum,
specific
at a
damages.
person
nominal
vagina
touched her
425;
Downing, 348
an
by
S.W.3d at
Tex.
assertion
Dispos-
adult that
the abuse
al,
place, just
We overrule Jesus’s first issue. We affirm the judgment of the trial court. Incremental Harm issue, In his third Jesus encour KEYES, Justice dissenting.
ages us to adopt the “incremental harm KEYES, Justice, EVELYN V. theory” for damages in defamation cases. dissenting rehearing. Jesus, According to under the incremental theory, harm if plaintiff is damaged both I my dissenting withdraw opinion dated by truthful information and false defama 16, 2012, February and issue opinion information, tory plaintiff is limited in in its I stead. continue to respectfully his damages to the incremental harm done dissent. reputation to his by the false defamatory This is a arising defamation suit out of a statement. See Austin v. Am. Ass’n of family dispute over reporting of the
Neurological Surgeons, 253 F.3d alleged sexual three-year-old abuse of a (7th Cir.2001). child to family authorities and members. theory incremental harm for defa- The trial court damages awarded for defa- mation has not been adopted in Texas. per mation se to the plaintiff, appellee Even if we were to adopt this theory, Stephen Byles, abuser, the alleged against however, Jesus Miranda, has not established that appellant, Jesus great-uncle Stephen was damages child, awarded greater for two statements Jesus than incremental harm done to him made to members during the De- Jesus’s statements. “An argues, partment Family and Protective Ser- judgment damages (“DFPS’s”) claim to enter a investigation of an out-
(cid:127)vices’ against Alternative- for defamation Jesus. Byles by great- Jesus’s against cry made immunity de- L.S., ly, regard Jesus’s niece, Byles’s without granddaughter fense, state- sister, single hold that the Lisa I would and Jesus’s common-law wife merits, brother Juan ment made trial on the Following Villareal. defamatory majority im- affirms as Jesus not to be trial court found and was opinion Family privileged was both liability under Texas mune nor to be a statement of fact 261.106, grants neither shown which immu- section Code Thus, it does not false. liability proved for statements nity from civil There- judgment. trial court’s of an good faith course made fore, judgment I reverse render abuse. The court investigation of child *15 nothing the merits defamatory, Byles that take on found statements then both $75,000 damages. his claim. Byles awarded and judgment but does not appeals Jesus Additional Facts ruling denying him appeal the trial court’s immunity liability under section from majority’s I account adopt The affirms the trial majority 261.106. fol- respectfully record add the but would on one of the com- judgment court’s based lowing facts.
ments. 2007, 5, On L.S. first volun- October mother, Villareal, immunity
I Jesus’s would first address teered her Valerie liability aunt, Villareal, The jurisdictional Byles from error. that and her Vanessa time, judg- trial court to enter Val- jurisdiction vagina. had her At the touched erie, L.S., Byles’s damages Vanessa, for defa- younger ment on suit for and L.S.’s depended brother, F.S., Jesus’s lack of im- Lisa upon staying mation were all with Therefore, (Valerie liability. munity personal from L.S.’s and mother and Vanessa’s Byles. the trial court have determined Je- grandmother) should and testified Valerie liability Family immunity ease, sus’s from under [giving in this “I was a shower L.S.] deciding [Byles] section before had Code 261.106 and she told me she— there, Byles’s defamation suit. It was it. merits her down and that touched have that Jesus immune and gesture, should held She me with a hand showed liability claims, Byles’s from on and it outcry The was made was it.” should have dismissed the defamation suit day trip left on a Byles after business failure to a claim for which relief for state refused Valer- Singapore. Lisa to believe granted. could be Because the trial court anything happened. ie’s had report Byles’s initially merits of to be determined the defama- take L.S. Valerie did determining tion suit the issue medically examined. before subjected to a immunity, Jesus’s Jesus outcry found out about judgment damages which the trial through family urged members and Valer- jurisdiction lacked to enter. examined, saying he ie to L.S. to be take sister, would if she would not. His judgment I would vacate the of the trial do so Lisa, court, im- to talk to him about judgment render Jesus is refused three allegations. from civil On October personal liability mune outcry, took L.S. Byles’s Family days claims under after L.S.’s Valerie defamation 261.106, Hospital section suit Hermann Southwest Code dismiss the Memorial hospital to be The ground on the that the trial court lacked Houston examined. Services jurisdiction try Byles’s required the merits that the Child Protective (“CPS”) notified, pened. of DFPS Law going division enforcement is to fol- County and the Sheriffs De- Austin through charges CPS low on but she did not investigations. opened both partment know what the charge be. He has requested tape and medical records.” L.S. would not let medical authorities The case was “administratively closed due her on but examine October it being a social worker work[ed] to question Stephen able her. She named law tape enforcement.” No recordings of as a Byles person who touched her the interviews and no medical records of reported this in- inappropriately. Valerie the examinations were introduced into evi- to her formation uncle Jesus. dence this case. kept be a insisting there medical Report Investigation also records L.S., kept examination of Lisa resist- attempted several contacts and contacts by ing. finally Valerie took L.S. into Memori- CPS with family members in connection Hospital, urging, al Hermann at Jesus’s case. On November 22, 2007, October for another interview investigator was unable reach Lisa Vil- a medical examination. Jesus drove 30, 2007, lareal. On November police her there. A officer Austin states that Jesus contacted CPS and “ad- County was present. repeated also L.S. *16 vised he is Lisa’s brother and is concerned outcry personnel her to medical [L.S. and he F.S.] because heard (“CAC”) Lisa Center Children’s Assessment taking of country.” was them out Je- interview, during naming Byles. The sus “advised he spoke with Detective medical examination was inconclusive. County] Homes Austin very [in and he is 5, January The “Investigation 2008 CPS upset County with Austin not pursuing Report” introduced into evidence at the seriously.” case this more The investiga- states, of this case respect with to the reported tor that Jesus L.S., October examination that wanted law get enforcement to Lisa to case had been referred from Austin come in by telling (untruthfully) her that County County CPS to Harris It CPS. daughter her attempted had suicide but reports County Austin social Detective Homes was not interested. I protective worker said there no were is- I advised Mr. was not Miranda interest- sues also that mother but ed either. Mr. Miranda advised he will said she was touched and [L.S.] do anything to in the investigation assist pointed vagina by [alleged to her AP and to please call him if we have ques- perpetrator] grandmother’s who is her tions. boyfriend. not able was to dis- [L.S.] tinguish to was penetrated whether she The CPS report for December 3 records how she was touched. A medical attorney, a conversation with Lisa’s who attempted was at Memorial but was stated that “[Lisa] and children were [outcry not successful. OV had victim] living away [Byles].” Houston today a medical exam at the done CAC The attorney arranged and CPS trans- clinic. She said Ms. Villarre- [Valerie] County, fer the case to Harris in which al does believe happened that this but located, Houston is “so we can get this mother not her does believe. [Lisa] 4, 2007, matter resolved.” On December report attorney Lisa’s told where Lisa The further states Valerie re- CPS ported that everything living came out the children were and said it “[w]hen “okay put her mother her out of the speak house be- CPS to with his client she anything directly.” cause does not believe hap- [Byles] Lisa has not pro- Lisa filed hotel. stated early December County to obtain custo- this
ceedings in Harris contact with the children since learned about dy the children. incident.” and, testified, he called CPS at the this Investigation Report concludes: The County Austin District At- direction of the Finding: and Risk Ruled Out “Disposition it.1 torney notify with factors controlled UTD [unable Investigation Report reflected on for for SXAB determine] [sexual abuse] L.S. was interviewed on December [L.S.].” no one has she “stated that and that Report,” The CPS “Risk Assessment inappropriately.... She stat- touched her 5, 2008, completed January also [Byles] has not who is her ed that she seen case, also introduced into evidence in this boyfriend long in a time.” grandmother[’s] allegations neglectful super- references However, reported Villareal Vanessa brother, both and her vision of L.S. little did state to investigator “that [L.S.] Lisa, F.S., were against Valerie and which [Byles] sister that was touch- her her Out”; a report “Ruled sexual abuse her stated that ing private parts. Vanessa Out”; Byles, F.S. which “Ruled immediately her she then told mother who abuse L.S. sexual packed things their left for Byles, the report which deemed “Unable [Byles] hotel. She stated that has Re- Determine.” The Risk Assessment been around since incident.” concluded, port factors “Significant risk Similarly, Investigation Report re- identified, family strengths and but that, January flected in her 2008 inter- pro- available resources are sufficient to view, Valerie *17 child(ren)’s safety fore- vide for the for the that [Byles] stated that told her [L.S.] future.” The stated rationale for seeable private her She parts. touched stated was were finding that the children that took she Southwest [L.S.] Lisa, with to be clean and living appeared hospital and the for examination test did healthy, neglect, did not abuse disclose not She that anything. disclose stated have contact children do not “[t]he day she brought [L.S.] next Byles].” with [Stephen in- Children Assessment Center [an] She terview and examination. stated History Investigations” The “Case the doctor stated there was dis- assigned that the investigation noted was charge[ but it was inconclusive if there ] investigator by to an on November CPS abuse. stated sexual She that she 16, 2007, January completed does not believe that her mother is al- Report, Like the Risk Assessment [Byles] contact between chil- lowing History allegations recorded Case dren. neglectful her supervision of L.S. and F.S., brother, by and Lisa both Valerie The investigator’s Decem- Villarreal, Out”; which “Ruled alle- were ber 27 interview with Lisa reflects that gations by Byles, of sexual abuse of F.S. daughter Lisa “stated that her told her Out”; and allegations which was “Ruled [Byles] stated that had fondled [L.S.] Byles, hearing by her. She stated that after this she sexual abuse L.S. which The gathered] things their went to a marked “Unable to Determine.” witnesses, testimony mony 1. The the other the court trial court found Jesus’s whom However, credible, and is with to be credible. his statement of the found to be consistent facts records. stated above consistent the testi- CPS overall disposition was “unable to Byles deter- filed the instant defamation suit mine,” and the finding risk was “factors against 12, 2008, Jesus on December as- controlled.” serting claims of slander per quod, slander se, per and intentional infliction of emo- 12, 2007,
On December Jesus left a re- tional distress based on Jesus’s recorded Lisa, corded voice-message for in which he Lisa, statement stated, “Stephen’s hands on “Stephen’s your hand on grand- your granddaughter’s vagina isn’t what daughter’s vagina isn’t what dictates this.” this,” dictates and on Juan’s report This statement is the first of the two state- Jesus had him told after ments Jesus that the October 22 the trial court found examination of L.S. that defamatory to be the doctor per se had awarding dam- confirmed ages Byles. Byles sexually assault- ed L.S. court held a hearing on tem- porary custody of L.S. and F.S. Lisa’s case, the trial of this Juan testified custody January suit on 2008. Before deposition, objection, without as to the sec- hearing, Valerie, Jesus called told her ond statement as follows: down, said, not to back “What if next Q: What statement did Mister —or time he penetrates your daughter?” what statements did Jesus make in January Also Jesus made the [Stephen about Byles] put him in a second statement on which he was found negative light? liable for defamation. Neither the exact A: That he had molested my— one of date nor the specific content of this oral my niece’s kids. statement Jesus to his brother Juan Q: well, And who did strike that. he— found, recorded. The trial court how- Which child? ever, on the basis of unobjected-to Juan’s A: deposition [L.S.] testimony, which was intro- evidence, that, duced into “In January 2008, Jesus published Miranda a statement Q: Okay. And when in time was it that to Juan Miranda that a doctor had exam- Jesus made this you? *18 L.S. ined and that the doctor had con- A: This in January believe Jan- —I
firmed that L.S. sexually had been molest- uary of '08. by [Stephen Byles].” ed Q: Okay. And how did the statement 29, 2008, January On the family come about? Did you, he call or was entered an order giving Lisa indefinite person? it in temporary custody of L.S. and F.S. The order also A: It enjoined telephone Lisa from was a “allowing] call. the minor children presence to be Q: Okay. you And he called and said [Stephen Byles] until further order of this what? court.” The attorney ultimately amicus That, know, A: you he knew that represented to family court that the [Byles] had done—had molested children would be better off in Lisa and [L.S.] that — Byles’s possession. May In the fam- Q: Did he it express opinion as an that
ily court lifted portion of its temporary he thought the child had done—that prohibited order that Byles from being [Byles] this, had done or that he ex- presence of the two children. Lisa was pressed it as a fact? ultimately custody awarded of L.S. and F.S. A: That he knew. I you That was the conversation A: he—did Jesus
Q: Did nega- had with him. to others reported he had that [Byles]? comments about tive deposi- from his excerpt In an additional fami- had to other reported That he A: Byles testimony, Juan that tion admitted there and right ly members $5,000, arrange- him that the that — had loaned not that he had told then he did state it back regard paying ment with to his else, anybody no. on, know, was, you financially by back “Get money get come into in order me to Q: Okay. you And did later self-set him,” Byles had also hap- had back to that any information that “always offered to with his children’s help” pened? schooling. Juan also testified that A: Yeah. issue family deeply divided over the receive? Q: you What information did L.S.; Byles sexually had assaulted whether one of that had my A: From brothers had he “knew” that that Jesus stated that they told my come over house matter of Byles had molested L.S. as a already he heard a re- me that fact, belief; information not as that, that cording they knew him alleged relayed about assault according to— she has been molested to his with Jesus prior Lisa conversation that infor- Q: they get And where did poten- “allegations” constituted that were from? mation tially being investigated; and that what he My A: brother. himself believed—that the molestation had brother, your talking Q. you’re And “[Byles] not occurred because brother, Jesus, your reported about his opinion. do that” —was to what other members? trial, Following the trial court entered My my A: brother brother Gabriel following findings of fact relevant Andy far as I knew because this dissent: had came and me. told Mi- 11. On December published randa a statement stat- Now, Q: Okay. make did Jesus “[Stephen’s] your ing hands you regards statements granddaughter’s vagina isn’t what whether or not had been taken [L.S.] this.” dictates to a doctor with to the sexual regards January Jesus Miranda abuse claim? Mi- published to Juan really Yes. A: Yes. Because I—I hadn’t had examined randa a doctor *19 she he told known that went until me. doctor had con- L.S. that the about Q: you And what did he tell sexually firmed that L.S. had been appointment? doctor by [Stephen Byles]. molested A: That she was that she a—confirmed de- 13. Jesus statements Miranda’s
was molested. ¶¶ Findings in 11-12 of the scribed Statements”) (“Defamatory of Fact Q: That a doctor had confirmed that concerning plain- defamatory were sexually she had been molested tiff. [Byles]? Defamatory 14. The Statements were
A: Yes. false. Q: And he told you that same conversation? Defamatory law Neither State- of that he was not
28. immune from liabili- ments nor ty. Nevertheless, statements] jurisdictional [other a question assisting in the waived; made while investi- raised, cannot be may even gation alleged of of report a child time, for the first appeal; it may be abuse or while neglect testifying or raised the appellate court sua sponte; in participating judi- or otherwise a appellate and the jurisdiction court has proceeding arising cial from a re- both decide its own and the trial court’s port, petition, investigation of or jurisdiction. See Tex. Ass’n. Bus. of alleged neglect. child or abuse Bd., Tex. Air Control 445- (Tex.1993). trial court also entered follow- ing conclusions law: I would immunity address the issue as 261.106(a), jurisdictional § fundamental error on the 14. Under Tex. Fam.Code ground that the trial court in person reports deny- a who in faith erred good ing protected immunity or him investigation assists in the personal liability alleged erroneously or child abuse who testifies ex- jurisdiction its or ercised to render a participates judicial pro- judg- in him, for liability against ment ceeding arising despite from a or Byles’s failure to state a claim investigation alleged child on which abuse granted. relief could be liability is immune from civil might otherwise arise. Family Code 261.106provides: section 261.106(c), § Under Tex. 15. Fam.Code (a) person A acting good faith who person who bad faith acts or reports or assists the investigation with in reporting malicious purpose of a report alleged child abuse or alleged neglect child abuse is not neglect or who testifies or otherwise immune from civil or criminal lia- participates judicial in a proceeding bility. arising report, from a petition, or is not immune from lia- [Miranda] investigation alleged child abuse bility [Byles’s] claims. immune neglect is from civil or liability criminal that might other- Jurisdiction wise or imposed. be incurred pled in the that he trial court liability immune from civil for defamation (c) person reports A person’s who section under 261.106 of the Child Protec- neglect own abuse or of a child or Act, Chapter Family tion 261 of the Code. who acts in faith bad or with mali- pleading The trial tried Jesus’s purpose cious in reporting alleged immunity simultaneously the merits neglect child abuse or is not immune claim, Byles’s rejected defamation Je- from civil liability. or criminal defense, immunity sus’s and entered judg- (Vernon § 261.106 Tex. Fam.Code Ann. against Byles’s ment Jesus on defamation 2008). claim. The trial court that the found “De- *20 statute, Section companion 261.106’s famatory not fall Statements” did within 261.101, Family provides, Code section the protective scope of section 261.106 and part: relevant that immunity concluded lacked (a) liability. appealed having he A Although person the cause to believe judgment, appeal physical Jesus did not the trial that a or mental child’s immunity adversely court’s its conclusion health or has been finding and welfare Family Code section by any defamation under or neglect abuse
affected It then have concluded a re- 261.106. should immediately make person shall upon a claim Byles that failed to state subchapter. port provided as that it granted relief be and which could (b) to believe If has cause professional a money enter jurisdiction to the lacked or ne- has abused that a child been court have sought. The should judgment neglect- or glected may or be abused not, I the case. Because it did dismissed ed, victim of an a child is a or that void, I vacate judgment the 21.11, Penal under Section offense the trial court judgment would enter the Child”], [“Indecency a with Code entered, the case dismissing have should cause professional the has a claim. for failure state been that the child has believe “ by Section 261.001 abused as defined ‘^jurisdiction’ power to hear is the 261.401, professional the shall or controversy, ... and determine a which than the report not later make a the to decide or power includes whether profes- 48th hour after hour in the is suffi pleading not a filed court ” suspects the child sional first v. to state a cause of action.... Jud cient may or ne- been or be abused has Antonio, San City Tex. of is a victim of an offense glected or (Tex.1945). general “As a 21.11, Section Penal Code.... under may a court address proposition, before case, the must the merits of court (Vernon 2008). § 261.101 Id. party or the jurisdiction have over Defama- court found that “the suit, jurisdiction to the property subject tory were not “made while Statements” matter, subject jurisdiction to en over assisting investigation of a particular judgment, capacity ter the or or while alleged neglect child abuse as a Tex. v. to act court.” State Bar of participating a testifying or otherwise (Tex.1994). Gomez, 243, 245 891 S.W.2d report, from a judicial proceeding arising “Subject jurisdiction requires matter child investigation alleged petition, or standing, the suit party bringing have It therefore concluded neglect.” abuse controversy that there be a live between liability was “not immune from justicia the case parties, and that claims” subsections for Plaintiffs under Thus, Id. “The trial court must de ble.” 261.106(a) (c), money entered opportunity at its earliest whether termine $75,000 Jesus on judgment against for statutory au it has constitutional claims. Byles’s defamation allowing case thority decide the before litigation proceed.” Dep’t. Tex. I with the trial court’s actions. disagree Miranda, Parks & 133 S.W.3d prelimi- The trial should have held a Wildlife (Tex.2004). controversy hearing nary evidentiary jurisdic- “[F]or on the justiciable, there a real relating tional to Jesus’s claim to be must be facts controversy parties that will immunity. pre- between On the basis of evidence sented, actually judicial relief have held be resolved the trial court should Gomez, comments, at 245. Byles’s sought.” which upon Jesus’s jurisdiction has based, initially a court privileged When defamation suit controversy a live grant mem- relief to resolve opinion made to statements standing, but investigation parties proper bers the course between that, non-justici therefore, case becomes subsequently Jesus was child abuse and able, certain limited au liability the court retains Byles’s immune from suit
565 liable, dispose by may of the dismissal. and no thority judgment to case be rendered Joachim, B15 against See Travelers Ins. Co. v. him. See Braum v. 76 Gay, Tex. (Tex.2010). 860, If 444,13 (Tex.1890).2 865 the district 472, S.W.3d S.W. 472-73 jurisdiction court of these lacks undisputed juris- Whether senses, its decision not bind the then does dictional facts establishes a trial court’s Gomez, 891 at 245. parties. S.W.2d “[A] jurisdiction question is a See Mi- law. is, parties decision that does not bind the randa, However, 133 at 226. “in S.W.3d definition, an by advisory opinion prohibit cases, jurisdic- some disputed evidence of by law.” Id. ed Texas implicate tional facts that also the merits Immunity liability from is an affirmative the may require case the resolution defense, suit, opposed immunity as to from finder of fact.” Id. When the existence of subject deprives which a court of matter jurisdictional is the challenged, facts court Miranda, jurisdiction ab initio. See 138 must necessary consider evidence when to Thus, “[¡Immunity S.W.3d at 224. from resolve jurisdictional the raised. issues liability immunity suit are from two 223; See id. at Indep. Bland Sch. Dist. v. principles.” Dep’t. Transp. distinct Tex. Blue, 547, (Tex.2000). 34 S.W.3d 555 A Jones, 636, (Tex.1999) (per 8 638 S.W.3d right court trial “has the to hear the neces- curiam) that, (holding like affirma- other sary evidence to enable it to decide as to liability, immunity tive to defenses from power has try whether not it the case liability pleaded be else it must is sought adjudicate, it is to have it whether waived). Immunity liability from does not allegations disclosing ju- the such want suits, protect a from all but it defendant appear petition risdiction the “protects judgment the from [defendant] plea or in plaintiff, jurisdiction to the Legislature expressly even if the con- has defendant,” or, here, in the affir- added). suit.” (emphasis sented to the Id. pleadings mative-defense of the defendant. Thus, immunity liability bars a suit Miranda, (quoting See at 226 for relief monetary against immune Bowser, Gentry v. 2 Tex.Civ.App. defendant, though even not bar a does S.W. Worth (Tex.Civ.App.-Fort suit for remedies the defen- other when writ)). party seeking no As the City dant has violated the law. See Elof jurisdiction, court’s invoke Heinrich, Paso v. 368-69 “allege affirma- plaintiff must facts that (Tex.2009) (stating, in governmental immu- tively jurisdiction demonstrate court’s case, nity “Sovereign immunity protects hear the Ass’n. cause.” Tex. money the State from lawsuits dam- for Bus., at 446. 852 S.W.2d ages,” although sovereign immunity does plea jurisdiction to the purpose of not bar suits other remedies where law) why merits of establish a reason (quoting defendant has violated Tex. plaintiffs claim should not be reached. Natural Comm’n. v. Res. Conservation (Tex.2002)). Dist, Sch. Indep. See Bland IT-Davy, 74 S.W.3d However, plea may deciding An action no be continued “a longer against jurisdiction required is not to look a defendant who cannot held immunity developed tutes claim for 2. Most law has been sufficient reason dismiss a governmental immunity, jurisdiction. immunity context of which must be lack of Civil presents analogous shown, but not identical situa- and, to state shown if results in failure immunity, sovereign tion. Unlike civil immu- granted, a claim relief can be on which initio, nity exists ab must be waived remedy proper which the is dismissal. state, and, waived, not shown if to be consti- *22 566 sought relief can upon consider of action which the may but
solely pleadings to the repled cannot be necessary and his claim granted, must when be and do so evidence action, trial a cause of the issues raised.” to state jurisdictional the to resolve however, should, permit but should repleading should not The court at 555. Id. Corp. suit. relevant to the See Reata Constr. to the evidence dismiss “confine itself 371, Dallas, 378 City a v. 197 S.W.3d Id. “Whether jurisdictional the issue.” of (Tex.2006) plaintiff where jurisdic- (holding that subject-matter of determination to waiver of hearing Reata failed demonstrate preliminary made a tion can be under immunity liability of the Tort development City’s a from or should await fuller plaintiffs properly to Act claims were largely case left Claims merits of the must be plaintiff was not entitled to exercise of discre- dismissed the trial court’s sound Brantley, also 365 S.W.3d at inquiry” replead); see Id. at 554. The “ultimate tion.” (stating that affirma- jurisdic- pleadings to the 94 where challenge in a trial court’s jurisdiction, plea plain- negate tive existence of pled is whether facts tion true, may without negated, jurisdiction granted to be al- tiff and not taken amend).3 “affirmatively lowing plaintiff opportunity demon- liberally construed a claim or within the trial strate claims Here, trial evidence court heard of subject-matter jurisdiction.” court’s which jurisdictional upon facts Jesus’s Comm’n., Tex. 365 Brantley v. Youth immunity was based affirmative defense of 89, 2012, no (Tex.App.Austin 94 merits only during the on the Jud, at also 184 S.W.2d pet.); see jurisdic- The Byles’s defamation claim. plain- whether (holding determination evidence as to tional included cause of action alleged tiff-fireman it, said, said what Jesus to whom he board, pension members of fund so against it and under what circumstances was when jurisdiction trial court had over that fact This to the said. evidence went claim, not be “in limine could determined and, immunity liability Jesus’s from there- plea hearing jurisdiction” on a to the fore, Byles’s of a claim facts). development but must await could liable and to which Jesus be held jurisdiction try Byles’s plaintiff to demonstrate trial court’s defa- When fails immunity liability by money judg- render a from mation suit waiver defendant, against jurisdictional The is- and thus to state a cause ment Jesus. fails that, consistently majority argues supreme held the issue of Jesus's court has 3. The immunity Byles’s jurisdiction sovereign not immunity, claims is even when is issue al, and, therefore, preserved, cannot was not immunity liability may protect from the state Slip appeal. addressed Court on be though money damages from suits for even (citing Cnty.Hosp. v. Op. at 13-14 Dist. Harris protect City against other suits. See does Hosp., Reg’l. Tomball (Tex.2009) 283 S.W.3d Heinrich, Paso v. El 284 S.W.3d 371- Dep’t. Tex. & Parks Wildlife Likewise, (Tex.2009). have the courts con Miranda, (Tex.2004)). sistently private held that when a citizen's distinguish majority cited The cases established, immunity liability from is immunity immunity between suit and from should be for failure to state a case dismissed liability sovereign im from context granted. upon which claim relief can case, munity. sovereign immunity In a P.C., Crain, James, Alpert v. & Caton immunity liability typically issue of is (Tex.App.-Houston 405-07 [1st already unless not reached the State has denied) (dismissing pet. case Dist.] Therefore, immunity waived from suit. attorneys liability against from civil immune jurisdiction entertain the suit is court's represen for actions taken in connection generally already established and all that tation). jurisdiction judgment. issue is the to enter the *23 During been heard first and the sue should have her first interview the hospital to jurisdiction proceed 8, 2007, trial court’s October on L.S. reaffirmed her preliminarily. the merits determined outcry to personnel, naming medical Byles happen. This did not the perpetrator. as Although per- medical sonnel were to perform physical unable a jurisdic- Had the trial heard the examination, due L.S.’s refusal to coop- first, it tional facts is inconceivable to me erate, the physician did confirm to Valerie a have judge per- that reasonable that L.S. Byles, had named and Valerie Byles’s against mitted suit Je- defamation reported that information to Jesus. proceed sus to to trial on its merits. On 5, 2007, outcry L.S. made October an that The County CPS and Austin Sheriffs by sexually Byles she had been abused Department investigations hampered gestures described with what he had done. by L.S.’s from removal the house and the 261.106(a) provides per- Section that “[a] However, county. Jesus continued to urge reports in faith acting good son who or that L.S. taken back to the CAC for a investigation a report assists short, physical examination. In he was the alleged neglect child or who testi- abuse or only family member who showed active judicial or in a participates fies otherwise interest in cooperating with an ongoing arising petition, from a proceeding report, investigation into child by sexual abuse investigation alleged or abuse or child appropriate authorities. neglect is immune civil criminal liability_” Tex. Fam.Code Ann. in getting succeeded Valerie to 261.106(a). § one No denied that the out- take L.S. back October CAC on cry was made on October 5 and nei- 2007, where a second was interview con- Valerie, her ther L.S.’s mother aunt ducted, in again Byles. which L.S. named Vanessa, grandmother nor her Lisa initial- physical A per- examination was also ly reported outcry Only to authorities. formed, was but inconclusive as to Jesus, reported to whom the incident was whether L.S. had been assaulted. The Valerie, by taken insisted L.S. be to medical are records the record of words, CAC be examined. In other However, case. January this obeyed the mandate section Report” in the rec- “Investigation CPS 261.101 person having cause to “[a] by *24 younger her interview with L.S. was not intro-
custody of both L.S. and
brother,
proof
falsity
into
of the
F.S.
duced
comment),
of
alleged
Jesus’s
and that the
January
“Investigation
The
2008 CPS
family
deeply
was
divided over whether
Report”
investigator’s report
includes the
Byles
sexually
had
assaulted L.S.
with Valerie and other
her interviews
The
records Val-
If Jesus’s unrecorded statement to Juan
family
report
members.
January
L.S.
told her that
before the
hear-
erie’s statement that
had
made
necessarily
Byles
ing,
had
her and had
it was
made before or
“fondled”
shown
family
gestures
days
her
done. It also within two
after the
court’s
what he had
January
includes the statement that Valerie “stated
2008 order that awarded cus-
enjoined
L.S.
and
tody
that the doctor stated that there was dis-
to Lisa
her from
allowing Byles
if there
be
L.S.
F.S.
charge[ but it was inconclusive
to
around
and
]
all
It
in the
abuse.” Lisa and
other
was also made
same month as the
sexual
Byles
family
reported
Investigation Report, completed
members
had
final CPS
5, 2008,
away
outcry.
January
L.S.
her
which
kept
been
from
after
recorded interviews
Vanessa,
Valerie,
Lisa,
all of
first
the trial court found
The
statement
acknowledged
whom
and described L.S.’s
defamatory,
on which Jesus’s
outcry. And it was made
the same
liability
predicated
is
December
—the
month
which CPS concluded that re-
in a
message
statement
voicemail
neglectful
ports
supervision
Valerie
“[Stephen’s]
hands on your
Lisa
and Lisa
L.S.
F.S. and
sexual
granddaughter’s vagina isn’t what dictates
by Byles of
abuse
L.S. and F.S. were
repeated
this”—was
after
had
made
L.S.
“Ruled Out with factors controlled UTD
times,
outcry
her
several
after medical
SXAB
[unable
determine] for
[sexual
personnel were unable to determine
on for
abuse]
[L.S.].”
assaulted,
sexually
whether L.S. had been
custody proceed-
after
had
reported
Lisa
initiated
Jesus’s second
statement was
ings, during
investigation
the active CPS
also made in the same month as CPS’s
case,
Report.”
and before the
Assessment
This
hearing
report
“Risk
custody
Lisa’s
suit.
included the same results of the various
investigations
Investigation
as the
Report,
second
trial
statement
court
Byles
noted that
kept away
been
from
defamatory
to be
found
—“a
outcry,
the children after L.S.’s
and con-
Juan Miranda that a doctor had examined
cluded, “Significant risk factors were iden-
L.S. and
the doctor had confirmed
tified,
but
strengths
available
sexually
that L.S. had been
molested
provide
resources are sufficient to
for the
Byles]”
[Stephen
January
made “[i]n
—was
child(ren)’s
safety
the foreseeable fu-
brother,
great-
2008” to Jesus’s
also L.S.’s
were
ture.” These risk factors
deemed
uncle. While no exact date is attributed to
significant enough by the trial
court
statement,
second
and no context
January 29,
injunction on
it,
given
it appears
that this statement
preventing
allowing Byles
to be
Lisa
8, 2008 hear-
January
occurred before the
the children until further
around
order
ing
custody
on Lisa’s
suit. Juan testified
the court.
deposition
only
was the
Upon hearing
time he
with Jesus about L.S.’s
the evidence regarding
talked
complaint,
already
immunity, along
that he had
heard about
with all the other
Jesus’s
evidence, in
been a
appears
lenge,
what
to have
the appellate court considers and
emotionally
involving
highly
charged
weighs
all the evidence supporting and
members,
only family
the trial
contradicting
all—and
challenged finding and
—
Defamatory
found that
finding
sets the
aside
if
“[n]either
the evidence
nor
is so
contrary
[other statements]
Statements
the overwhelming weight
assisting
investigation
while
of of
made
the evidence as to make
finding
alleged
neglect
clearly
manifestly
child abuse
wrong
unjust. Cain
Bain,
(Tex.1986)
testifying
participat-
or while
otherwise
curiam).
judicial
arising
view,
in a
from a
*25
ing
proceeding
(per
my
a reasonable
petition,
alleged
or
report,
investigation
fact
fair-minded
finder could not have
abuse
neglect,”
child
or
and it concluded as
found that Jesus’s comments to Lisa and
of law that
a matter
Jesus was not immune
to his
Juan during
brother
the CPS inves
liability under
tigation
from
section 261.106.
outcry
of L.S.’s
were not made
while
assisting
Jesus was
in the investiga
The trial court’s
that Jesus
conclusion
Therefore,
tion of a
report
child abuse.
was not immune for his
under
statements
I would
the
hold that
evidence supporting
261.106
directly
section
followed
its
the
finding
trial court’s
of fact was so weak
finding
Defamatory
of fact that the
State-
as to
finding clearly
make its
wrong and
assisting
were not made
in
ments
while
the
manifestly unjust. And I would hold that
investigation
alleged
of a report of
child
the trial court’s conclusion of law number
view,
my
abuse.
In
sexual
this conclusion
was, therefore,
sixteen
erroneous.
rationally
is
unsustainable
the
under
facts
of this case.
It
is also inconceivable to me
a
“reasonable and fair-minded” court could
A trial court’s
law
conclusions of
are
find, on the basis of the evidence in this
de novo.
Belg.,
reviewed
BMC Software
case,
was anything
that Jesus
other than
Marchand,
789,
v.
N.V.
88
794
S.W.3d
person acting
good
“[a]
faith who re-
(Tex.2002).
sufficiency
The
of the evi
ported]
investigation
assisted]
or
supporting
challenged
dence
a trial court’s
alleged
of a report of
child abuse or ne-
findings of fact
following a bench
is
glect or
...
participate^]
who
otherwise
reviewed under the
to re
standards used
in a judicial proceeding arising from a
the legal
sufficiency
view
or
factual
or
report, petition,
investigation
alleged
supporting jury
evidence
Catali
findings.
neglect”
child
or that
abuse or
it could find
(Tex.
Blasdel,
na v.
881
297
that the two statements on which the trial
1994).
appellate
When the
record includes
predicated
liability
Jesus’s
were out-
record,
reporter’s
the trial court’s fac
side
scope
protection
extended
findings,
express
implied,
tual
whether
261.106(a).
by
persons
to such
section
are not conclusive
may
challenged
261.106(a),
§
(c);
City
Tex.
Ann.
Fam.Code
legal
and factual
See Mid
sufficiency.
Keller,
at 827.
v.
dleton Kawasaki Steel Corp., 687 S.W.2d
Dist.]),
(Tex.App.-Houston
There is no evidence of Jesus’s “bad
[14th
n.r.e.,
(Tex.1985).
purpose”
writ
rewarded even financial Defamation if, here, placed the sanctions purported by child au- protection abuser I to Byles’s Were reach the merits claim, professional thorities on the basis of evalu- I defamation would sustain Jesus’s CPS, issue, by personnel, ations medical and law second and I would reverse the ultimately judgment enforcement authorities are lift- of the trial court and render judgment Byles ed. nothing take by his claim. My fun- conviction that this is a case of issue, argues his second jurisdictional strength- damental error is the trial court holding erred in that he ened the fact that the in this majority Byles defamed because “at least one of the case, record, reviewing after can find statements, allegedly defamatory uttered one statement Jesus that it con- [Jesus], is inherently incapable objec- supports cludes a defamation For finding. and, tive verification or disproof,” there- section, I argued reasons the next fore, Byles prove cannot defamation. I find that lone privileged, would hold Jesus’s statement to Lisa and, privileged, even if it were not it is not incapable objective verification or dis- a statement of fact could be or was *27 proof that neither and that statement nor Rather, objectively to be shown false. is statement Juan was shown be a undated, an unspecific hearsay statement defamatory false and statement of fact of opinion reportedly by made to his excuse, legal required made without as for brother, Juan, the that doctor to whom Byles carry his burden of proof. following L.S. was taken her had outcry Legal A. Excuse sexually stated that the had child been assaulted by Byles. Even if that state- is a defamatory “Slander that statement ment were not not privileged, orally and were is published communicated or to a hearsay only in reported deposition, legal Juan’s person third without excuse.” Mkts., the Johnson, burden in a suit have defamation Randall’s Food Inc. v. Byles (Tex.1995). been on exactly Randall’s, to show what Jesus In said, fact, that it was a statement of and Supreme developed the Texas Court the that, fact, in reported legal the doctor the employ- that doctrine of excuse in the sexually child was not not er/employee assaulted or was context. It that “an held em- by assaulted Byles, ployer that Jesus saw the a qualified privi- has conditional or report and for a he lege knew fact that what that attaches to communications made false, any- said was and that he said it of an investigation following course way family the investigatory report employee wrongdoing.” a Id. —outside process purpose injuring the “The privilege long remains intact as as —for Byles’s reputation. absolutely pass There persons was communications hav- Indeed, by no showing Byles. ing such the or the duty an interest matter to tape medi- L.S.’s CPS interview and her which the relate.” Id. communications records, cal might privilege only by which have shown The can be defeated report, whether made a proof by Jesus even false a statement motivated that were never into existing publi- introduced actual malice at the time of Byles context, of his claim. “In defamation cation. Id. the defamation interview L.S. had malice when October that with actual
statement is made knowledge made outcry with medical made an to the additional disregard as falsity with reckless its or her and personnel who had interviewed its truth.” Id. of the Byles perpetrator had named assault; report followed Randall’s, communi- employees store physical customer had made to him Valerie after the cated to each other a wreath. paying left the store without on 22 that the examination of L.S. October The customer admitted that Id. he unable to physician had stated the intent to fact but said she did have sexually whether L.S. had been determine Id. was communicat- steal. The statement by Byles. during Also this time assaulted managers duty on the ed to several period, CPS issued a that included incident, security guard night stated Valerie’s statement “the doctor incident, the assistant investigated who discharge[ there was but it was inconclu- ] store, manager, store the director abuse”; if there was sexual two CPS sive store, manager the district allegations neglectful reports ruled out re- president vice of Randall’s human Lisa, stated supervision by Valerie but supreme court sources. Id. at 647. The were to de- investigators “unable employees “all of the who observed that Byles sexually termine” whether as- about gave received statements L.S., “signifi- therefore saulted found duty an wreath incident had interest Lisa, living cant risk factors” in L.S.’s held, It estab- matter.” Id. “Randall’s risk but found that those factors regard lished of malice with absence prohibiting Byles controlled Lisa’s by conclusively these proving statements L.S.; being and the around grounds its employees had reasonable Lisa, granted custody of L.S. and F.S. to to believe that their statements were enjoined Byles allowing but also her from Brand, (citing true.” Id. Casso v. *28 to be the children until further around (Tex.1989)). 551, S.W.2d 558 of the There order court. is no evidence case, Similarly, in this Jesus satisfied with that Jesus’s statements were made in attach- the criteria set out Randall’s for knowledge falsity of or reckless their meeting ment of excuse legal a as disregard to their truth. id. Nor See civil lia- requirements immunity any introduced —such as the bility Family under Code 261.106. section of the interview L.S.—that tape CPS of Both were statements “communications have Jesus’s might shown statements investigation made course of an indeed, be, facts. false statements of following a ... report wrongdoing.” of Id. Thus, Jesus’s comments were because at 646. Both were communications made “assist[ing] made in the course of his “persons having duty an interest or investigation report alleged of a of matter to which communications evi- participating] Id. Nor there child abuse” or “otherwise relate[d].” made with dence the statements were judicial from a proceeding arising in a i.e., malice,” “knowledge “actual of [their] ... child investigation alleged of falsity or disregard with reckless as to abuse,” I find that communica- truth.” Id. [their] statutorily protected there- tions legally fore See Tex. Fam.Code excused. Jesus’s L.S.’s re- statements followed 261.106(a); Randall’s, § S.W.2d 891 outcries; peated they followed the state- Ann. ment made him Valerie after the at 646.
573 1, Even if had failed to a Section establish Article 8 of the Texas Constitu- Brasher, sec- legal 567, excuse for his statements under tion. v. Carr 776 S.W.2d 570 however, 261.106, (Tex.1989); Welch, tion I would still hold see also Robert Gertz v. Inc., not an 323, that the first statement Lisa was 339-40, 2997, U.S. 94 418 S.Ct. objectively statement of fact as a 3007, (1974) verifiable 41 L.Ed.2d (stating, 789 “Un- Byles prove matter of law did not der the First Amendment there is no such was a the second statement to Juan thing a false idea.... But there is no false statement fact. constitutional value statements false fact.”). put way, To plaintiff, another a Verifíability Objective
B. Lack of libel, to establish a cause of action for defamation, To plaintiff establish required prove that pub- “the defendant prove published must that the defendant a false, lished a statement defamatory El-Khoury fact. v. false statement of fact, than opinion,” rather or “[i]n other Kheir, 82, (Tex.App.-Hous 241 85 S.W.3d words, plaintiff prove must 2007, denied); pet. ton Accu [1st Dist.] false, statements contained defamatory Drummonds, v. Mortg. Corp. -Banc 938 facts rather than opinions or characteriza- (Tex.App.-Fort S.W.2d 149 Worth Reg’l. tions.” Valley Columbia Med. Ctr. (“Defamation denied) writ involves Bannert, 193,198 112 (Tex.App.- S.W.3d publication a false statement fact Corpus pet.). Christi no about To on a plaintiff’). succeed claim, a plaintiff defamation must demon Whether opinion is an or a (1) strate that the defendant published statement of fact is a question law for (2) factual statement that was capable Carr, 570; 776 courts. S.W.2d Ban (3) meaning defamatory concerning the nert, 112 S.W.3d at threshold (4) acting negli plaintiff while with either capable issue of whether words are of de gence, if the is a plaintiff private individu famatory meaning question is also a of law al, malice, or actual if the is a plaintiff for the courts. Turner v. KTRK Televi official, figure public public concerning sion, (Tex.2000); Inc. Kaspr the truth of the statement. Vice v. Vice, Bannert, 17; 318 S.W.3d at zak, 12 (Tex.App.-Houston S.W.3d at 198. The construe courts denied) 2009, pet. (citing [1st Dist.] statement as a whole in light sur WFAA-TV, McLemore, Inc. v. circumstances rounding based how a (Tex.1998)). 568, private individ “[A] *29 person ordinary intelligence per of may damages ual publisher recover from a Vice, 17; Bannert, ceive it. 318 S.W.3d at a defamatory broadcaster of falsehood 112 at 198. as to S.W.3d The test whether compensation upon actual injury as defamatory words or statements are is the showing publisher that the or broadcaster Vice, person 318 reasonable test. S.W.3d knew or should have known de that the analysis distinguishing at 17. “The famatory was false.” v. statement Foster an between actionable of fact statement Inc., Laredo 541 Newspapers, S.W.2d constitutionally protected expression and a (Tex.1976); Corp. 819 A.H. Belo v. of focuses on the veri opinion statement’s (Tex. 71, 80, Rayzor, 644 S.W.2d 82-83 in fiability and entire context which it n.r.e.). App.-Fort writ Worth ref'd at statement was made.” Id. 18. A By capable defamatory meaning contrast false fact if it is both statements of injurious injurious all to the reputation, reputation assertions false and opinion person are Amend- whom it is See Casso protected First about made. Brand, (Tex.1989); ment of the United States Constitution and v. 554 339-40, negative Gertz, [Byles] to him in a put 94 S.Ct. about at see also U.S. Sullivan, 2997, 3007; light? N.Y. Times Co. 710, 726, 279-80, 84 S.Ct.
376 U.S. my— he had one of A: That molested (1964). L.Ed.2d 686 kids. my niece’s states, case, majority In this as the well, that. who did strike Q: And he— record that no “There is Which child? by anyone being discussed this matter was A: [L.S.] charge in than the officials other family.” Lisa’s investigations, various time was it that Q: Okay. And when in Therefore, private this is a at 20.
Slip Op. you? made Jesus case, person defamation person/private had the burden Byles, plaintiff, as the Jan- January in believe A: This was —I upon which the statements proving 'D08. uary of objec- his claims were he based defamation Q: Okay. And did the statement how fact, verifiable tively statements you, about? he call or was come Did reputa- injurious false they were person? it in tion, negligently, made were telephone It was a call. A: i.e., of care of an were below the standard Q: Okay. you And called and said he statement, ordinary person making such a what? entire of the statement— given the context That, know, you he knew that Ste- A: assuming they protected sec- that— ven had done—had molested as made tion 261.106 statements [L.S.] assisting good faith the course abuse, investigation report of a of child express opinion he Q: Did it as i.e., outcry. L.S.’s See Tex. Fam.Code Ann. thought the had done—that he child 261.106(a). § this, or that he ex- Steven had done pressed fact? statement, hand on “Stephen’s The first your granddaughter’s vagina isn’t what knew. A: That he this,” is not a verifiable plainly dictates you Q: Did he—did fact, opin- statement of but a statement reported nega- that he had to others Bannerb, 112 ion or characterization. See [Byles]? tive comments about such, at 198. it is constitution- As he had to other fami- reported A: That Gertz, ally protected speech. See 418 U.S. there and ly right members that — 339-40, 3007; Carr, at S.Ct. had told then he did not state that he at 570. else, anybody no. statement, In the case of second And later come into Q: Okay. you did the entire context neither content nor hap- any information that that had *30 verifiable. objectively of the statement is pened? be a Nor was the statement shown to false A: Yeah. Vice, fact. statement of See 318 S.W.3d at Q: you did receive? What information state- 18. The out-of-court unrecorded by approximately ment Jesus was made had one of that my A: From brothers years deposition, two before Juan’s they told my come over to house and which Juan follows: testified as a re- already he had heard me that that, that cording knew
Q: What statement did Mister —or that according to— Jesus make she has been molested what statements did they get by Byles’s And where did Q: attorney infor- after he had failed to mation from? use those words in his deposition initial However, testimony. even if the content My brother. A: of Jesus’s statement is taken to be what brother, your you’re And Q: talking the trial court found it to be—that Jesus brother, Jesus, your reported about it told Juan that a doctor had confirmed that family to what other members? sexually L.S. had been by molested My my brother A: Gabriel brother Byles by not shown —this Andy as far as I knew because they anything in the record this case to be had came and told me. Byles false. had burden of establish- added.) (Emphasis recording ing statement, the falsity of Jesus’s and he Juan testified Jesus heard was had failed to include in the record either the by Byles proof introduced into evidence tape interview, of the CAC which Juan falsity recklessness Jesus’s heard, testified Jesus had or L.S.’s medical report. might records that have shown that Je- is, testimony As does not even Therefore, sus’s was false. Byles the trial finding court’s that Jesus carry failed to See proof. his burden of Foster, had told Juan “that a had doctor examined 811; 541 S.W.2d at El-Khowry, and that L.S. doctor had confirmed AccuBanc Mortg., 85; at sexually that L.S. had been molested Moreover, at Valerie’s state- [Stephen Byles].” The closest Juan’s de- ment that reported the doctor to her on position testimony conforming comes to October that “there was dis- finding of fact court is the charge[] but it was inconclusive if there following: sexual abuse” tends to confirm the statement, or, substantial truth Now, Okay.
Q: did make any least, negate tends to the statement’s hav- you regards statements ing recklessly been made and with disre- whether or not had been taken [L.S.] gard its truth or with actual knowledge ato doctor with to the regards sexual its falsity. abuse claim? really Furthermore,
A: Yes. Yes. Because I—I hadn’t because Jesus’s statement known that until she went he told me. Juan supported by enough by deemed credible both CPS and Q: you And what did he tell about justify court order appointment? doctor enjoining Lisa allowing Byles to be A: That she was a—confirmed that she L.S., around it cannot be said that Jesus’s was molested. statement was unreasonable or that his Q: That a doctor had confirmed that bad faith. statement was made sexually she been molested Vice, 17 (setting S.W.3d at out reason- [Byles]? test); person able Tex. Fam.Code Ann. A: Yes. 261.106(c) § (stating immunity does And Q: you he told same not extend to statements made in bad conversation? faith). That
A: was the conversation I Were I Byles’s to reach the merits of *31 had with him. claim, defamation I would hold that Jesus’s deposition testimony, In this Juan did no either expression statement to Lisa was than put more confirm in his opinion words mouth of Jesus’s or his characterization of immunity from claim of by granted and had Jesus’s told he had been Valerie what liability, have dismissed Byles did and should recording and that on the heard claim for failure Byles’s to Juan defamation statement prove that Jesus’s not Bannert, which relief could be upon state a claim 112 S.W.3d at false. granted. show the state- Byles 198. Nor did predi- liability Jesus’s ments on which I find was not Even if that Jesus were reck- or with negligently were made cated liability for his statements immune from Rather, they disregard for the truth. less that, therefore, the trial did have investiga- the context of the were made in money judgment enter a jurisdiction to per- all outcry of an which Jesus tion defamation, him still against for I would required knowledge with sons al- single hearsay find that the report, 261.101 to Family section Code legedly made his brother rec- evidentiary have defamatory was not majority agrees Therefore, believe, if I even did ord. capa- statement of fact shown to a false do, entry of a I that the trial court’s liability supporting judgment for ble damages Jesus for for judgment against Accordingly, respectful- I for defamation. barred Jesus’s statuto- defamation was ly majority’s opinion dissent from Fam- immunity liability civil under ry from judg- the trial court’s judgment affirming 261.106, I hold ily Code section ment. in entering judgment erred the trial court trial judgment I would vacate the his claims. Byles in favor on defamation judgment court and the trial render appellant’s Accordingly, I would sustain rendered, dismissing court should have second issue. Alternatively, jurisdiction. case for lack of render judgment I would reverse and Conclusion Byles nothing by take his claims. jurisdic- This is a case of fundamental court erred tional error. I believe trial KEYES, dissenting. Justice de- trying Jesus Miranda’s appellant immunity liability from under fense
Family section 261.106 for state- Code during the
ments made to members child investigation alleged
course of an its trial simultaneously sexual abuse SEGHELMEBLE, Juan Cristobal Byles’s appellee Stephen of the merits of Appellant based on against defamation suit statements; finding that it those erred liability immune
Jesus not to be from Texas, Appellee. The STATE of statements; in exer- and that it erred No. 05-11-00300-CR. merits of cising jurisdiction over rendering claim Byles’s defamation Texas, Appeals of Court of damages Jesus on judgment against Dallas. that defamation claim. 30, 2012. Oct. I would hold that Jesus was immune Feb. Rehearing Overruled Byles’s liability civil defamation Family 261.106. claim under Code section
Therefore, have court should It notes ord. records entered CPS on physical that a child’s believe mental 22, 2008, in October with the accordance adversely health or welfare has been af- 261.001(b). mandate of section by or neglect by person fected abuse It is unclear from the where L.S. record immediately make a provid- shall living was or with whom she was in Octo- 261.101(a). by subchapter.” § ed Id. investiga- ber and November persons knowledge All of the other with County tions CPS and Austin Sher- outcry disregarded statutory his or her Jesus, however, Department iffs stalled. contrast, duty. By agreed when Valerie subsequently Lisa later, persisted, and contacted days L.S. take to be examined three through attorney her and told them CPS hospital immediately on October fol- living L.S. in Houston. her lowed its own mandate section under 261.101(b) That led to of fami- outcry information interviews reporting the CPS ly investigator members CPS De- County and the office. Austin Sheriffs 261.101(b). January § and also to id. Both and the cember 2007 and CPS investigation County Department began County’s dropping Austin Sheriffs Austin investigations. jurisdic- L.S. now out of its because brothers, custody proceed- complaint initiated from other who tion. Lisa also County seeking tape to obtain said Jesus had heard of the CAC ings in Harris (which