MIRANDA v. BYLES

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Court of Appeals of Texas,Houston (1st Dist.).

Jesus MIRANDA, Appellant v. Stephen BYLES, Appellee.

No. 01–10–01022–CV.

Decided: October 25, 2012

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE. Matthew Paul Nickson, for Jesus Miranda. Earle S. Lilly, for Stephen Byles.

OPINION ON REHEARING

We originally issued our memorandum opinion in this appeal on February 16, 2012. Appellant, Jesus Miranda, has filed a motion for rehearing and for en banc reconsideration. We grant the motion for rehearing, vacate our earlier judgment, withdraw our previous opinion, and issue this opinion in its place. We dismiss the motion for en banc reconsideration as moot.

Miranda challenges the trial court's judgment holding Jesus liable for publishing statements determined to be defamatory per se. In three issues, Jesus argues (1) the statements were not defamatory per se; (2) Stephen failed to prove that the statements were false; (3) there is legally and factually insufficient support for the award of actual damages; and (4) neither statement is actionable under the incremental harm theory.

We affirm.

Background

Some time in September 2007, Valerie Villarreal came from her home in Harlingen to the home of her mother and step-father, Lisa Villarreal and Stephen Byles, in Sealy, Texas. What was supposed to be a short visit turned into an extended stay.

At the time, Valerie relied on Lisa and Stephen for financial support. She was also known to be friends with gang members and was involved in drugs and drinking alcohol.

During the visit, Valerie's sister, Vanessa Villarreal, turned 16. That night, Vanessa snuck out of the house and spent time with some of Valerie's gang friends. Valerie initially denied knowing where Vanessa was. Eventually, Valerie became concerned, admitted to knowing who she was with, and began assisting her mother in locating Vanessa. Vanessa showed up later the next day, under the influence of some drug.

This led to a fight between Valerie and Lisa and Stephen. Lisa and Stephen told Valerie she was going to lose some of her financial support and that she was going to have to return home. Stephen then left for a business trip to Singapore the next day, October 4, 2007.

On Friday, October 5, 2007, Valerie's daughter, L.S., told her that Stephen had placed his hand on her vagina. L.S. was three at the time of the outcry. Valerie reported that L.S. was not upset when she told this to Valerie. Valerie told her mother about what L.S. had said. In the discussion, Lisa told Valerie she still needed to leave and that Valerie should get L.S. examined if she believed the statement.

Jesus Miranda, Lisa's brother, found out about the outcry the next day. While he had not been involved in the lives of Valerie and L.S. before the outcry, he became very involved following the outcry. Jesus told Valerie that he was going to call CPS if she did not. Valerie told him she planned to take L.S. to be examined.

Jesus also called Lisa. Lisa told him she did not want to talk to him about it. Jesus began telling Lisa about how they could team up and get Stephen. At the end of the conversation, he told Lisa that he would get her and Stephen and that she would go down with Stephen.

Valerie took L.S. to a hospital to be evaluated on Monday, October 8, 2007. The hospital required the authorities to be alerted before an examination could be performed, so Valerie contacted the Child Protective Services division of the Department of Family and Protective Services (“CPS”). L.S. was interviewed by the doctors. They asked her if she had been touched, and L.S. said Stephen's name. The doctors at the hospital attempted to physically examine L.S., but she would not let them. The examination was discontinued.

After the incident was reported, CPS began an investigation into the allegations. The Austin County District Attorney's Office also began an investigation into the allegations.

Later in October, Jesus took Valerie and L.S. to a barbecue at the house of some friends. Jesus introduced L.S. to those at the barbecue as the child that Stephen molested. Valerie was staying with Jesus around this time and heard him telling people on the telephone that Stephen had molested L.S.

On October 22, 2007, Valerie and Jesus took L.S. to the Children's Assessment Center. The people at the center first interviewed L.S. Then they performed a physical examination, but the examiners concluded that there was no physical indication of whether L.S. had been sexually molested.

Shortly after the visit to the Children's Assessment Center, Jesus told Valerie that he did not need her any more. Valerie went back home to Harlingen. While she was in Harlingen, Jesus called her several times and told her that she would lose her kids if she did not do certain things and threatened to call CPS on Valerie.

Around November 13th, 2007, Lisa, at Valerie's request, took possession of Valerie's children. Valerie had told Lisa that, if she did not take the children, Valerie would give them to CPS. Valerie felt that she was not stable anymore and could not give the children the attention they needed. Stephen lived separately from Lisa once she took possession of the children.

Proceedings for Lisa to take custody of Valerie's two children were initiated in Houston. An amicus attorney was appointed in that case to look after the best interest of the children.

After Lisa took possession of the children, Valerie told her that Jesus wanted to issue an Amber Alert on the children. Around that time, allegations arose that Lisa had kidnapped the children. At trial, Jesus testified that he could not recollect telling the district attorney that Lisa had kidnapped the children.

During this course of events, Jesus frequently called or texted Lisa, making accusatory statements. In one message left on her voicemail, he told Lisa that he and Valerie were on their way to the police station and that the police were going to take Valerie's children from her. In that message, Jesus also said, “It's not going to be under your terms anymore, Lisa. Stephen's money isn't what dictates this. Stephen's hand on your granddaughter's vagina isn't what dictates this. OK? I dictate this now, honey.”

A hearing on temporary custody of Valerie's children was held in January 2008. Before the hearing, Jesus called Valerie, telling her not to back down and saying, “What if next time he penetrates your daughter?” Jesus came to the hearing as well. He told Valerie that the only reason Lisa was taking the children was to try to help Stephen's case. The family court entered an order giving Lisa indefinite temporary custody of the children. The order also restricted Stephen from being around the children.

Also in January, Jesus told his brother, Juan Miranda, Jr., that Stephen had molested L.S. and, in addition, said that a doctor confirmed that Stephen had sexually molested L.S. Jesus claimed that he knew that it happened.

The amicus attorney ultimately represented to the family court that the children would be better off in Lisa and Stephen's possession. In May 2008, the family court lifted the portion of its temporary order that prohibited Stephen from being in the presence of the two children. Lisa was awarded custody of Valerie's children.

Eventually, the investigations by CPS and the Austin County District Attorney's Office were concluded without pressing charges or any claim of wrongdoing by Stephen.

Stephen filed a suit against Jesus on December 12, 2008. At the time of trial, Stephen asserted claims of slander per quod, slander per se, and intentional infliction of emotional distress. At trial, Stephen limited his claim to slander per se based on (1) the voicemail message Jesus left for Lisa stating, “Stephen's hand on your granddaughter's vagina isn't what dictates this” and (2) Jesus's representation to his brother Juan that a doctor confirmed that Stephen had sexually molested L.S.

The parties agreed to a bench trial. The two-day trial began on May 17, 2010. On May 18, 2010, the trial court issued its findings of fact and conclusions of law. The findings of fact, in relevant part, contained the following:

6. Ste[ph]en Byle[s] was a credible witness. His testimony was clear, positive, and direct. His demeanor on the witness stand exhibited trustworthiness and honesty.

7. Jesus Miranda was not a credible witness. His testimony was often evasive, contradictory, and implausible. His demeanor on the witness stand did not suggest that he was trustworthy.

8. Ste[ph]en Byle[s] brings this lawsuit as a private individual.

9. Jesus Miranda is not a member of the print or broadcast media.

10. The issues concerning defamation involve only Ste[ph]en Byle[s]'s individual interests, not public interests.

11. On December 12, 2007, Jesus Miranda published a statement stating “Ste [ph]en's hands on your granddaughter's vagina isn't what dictates this.”

12. In January 2008, Jesus Miranda published a statement to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by Ste[ph]en Byle[s].

13. Jesus Miranda's statements described in ¶¶ 11–12 of the Findings of Fact (“Defamatory Statements”) were defamatory concerning plaintiff.

14. The Defamatory Statements were false.

17. As a result of Jesus Miranda's defamatory statements, Ste[ph]en Byle[s] has endured mental and emotional anguish, been shunned from his wife's family, and suffered injury to his reputation.

28. Neither the Defamatory Statements nor [other statements] were made while assisting in the investigation of a report of alleged child abuse or neglect or while testifying or otherwise participating in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect.

29. An award of $25,000 would fairly and reasonably compensate Ste [ph]en Byle[s] for the mental and emotional anguish and damage to reputation that he suffered as a result of Jesus Miranda's defamatory conduct.

31. An award of $50,000 should be assessed against Jesus Miranda and awarded to Ste[ph]en Byle[s] as exemplary damages.

The conclusions of law, in relevant part, contained the following:

6. The Defamatory Statements constitute defamation per se because they impute sexual misconduct and allege that Ste[ph]en Byle[s] committed a criminal act.

7. Since the Defamatory Statements by Jesus Miranda constitute defamation per se, Ste[ph]en Byle[s] may recover general damages without proof of injury.

14. Under Tex. Fam.Code § 261.106(a), a person who in good faith reports or assists in the investigation of alleged child abuse or who testifies or participates in a judicial proceeding arising from a report or investigation of alleged child abuse is immune from civil liability that might otherwise arise.

15. Under Tex. Fam.Code § 261.106(c), a person who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

16. [Miranda] is not immune from liability for [Byles]'s claims under Tex. Fam.Code § 261.106.

The judgment awarded Stephen $25,000 in actual damages for the slander per se claim and $50,000 in exemplary damages.1

Slander Per Se

In part of his second issue, Jesus argues the statements that formed the bases for liability were not defamatory per se because they were not objectively verifiable.

A. Standard of Review & Applicable Law

“Whether words are capable of the defamatory meaning the plaintiff attributes to them is a question of law for the court.” Cecil v. Frost, 14 S.W.3d 414, 417 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654–55 (Tex.1987)). Questions of law are subject to de novo review. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

If the statement is capable of a defamatory meaning, but the statement is also “ambiguous, of doubtful import, or susceptible of two or more interpretations, its actionability must ordinarily be decided” by the fact finder. Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 583 (Tex.App.-Austin 2007, pet. denied). We accord a trial court's findings of fact the same force and dignity as a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). Such determinations are reviewable for legal and factual sufficiency. Id.

“An oral statement is defamatory per se only if it falls within one of the following categories: (1) imputation of a crime; (2) imputation of a loathsome disease; (3) injury to a person's office, business, profession, or calling; or (4) imputation of sexual misconduct.” Downing v. Burns, 348 S.W.3d 415, 424 (Tex.App.-Houston [14th Dist.] 2011, no pet.). “[A]n allegedly defamatory publication should be construed as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000). This is an objective test. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004).

“For a statement to be actionable in defamation, it must expressly or impliedly assert facts that are objectively verifiable.” Palestine Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex.App.-Tyler 2008, pet. denied) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002)). If a statement “cannot reasonably be interpreted as stating actual facts about an individual,” it is not actionable. Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706.

B. Immunity

In his motion for rehearing, Jesus adopts the argument from the dissent that he is immune from liability based on section 261.106 of the Texas Family Code. See Tex. Fam.Code Ann. § 261.106 (Vernon 2008). As pointed out by the dissent, section 261.106 provides:

(a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

Id. § 261.106(a) (emphasis added).

The dissent also correctly points out that “Immunity from liability and immunity from suit are two distinct principles.” Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Finally, the dissent even recognizes that “[i]mmunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction.” Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); see also City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex.2011) (holding “[b]ecause immunity from liability constitutes an affirmative defense, not a jurisdictional bar, only immunity from suit is properly before us today”); Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex.2009) (holding “immunity from liability is not jurisdictional”).

Even assuming without deciding that Miranda properly presented and preserved this issue in the trial court, it is undisputed that Miranda never raised this issue in his brief on the merits on appeal.2 Instead, the dissent raised it for the first time, and Jesus attempts to adopt it in his motion for rehearing.

An issue raised for the first time in a motion for rehearing is waived. Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 885 (Tex.2001); see also Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that issue in motion for rehearing is waived if original brief “is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue”).

Jesus cannot rely on the dissent's raising of the issue to avoid waiver. It is well established in Texas law that “an appellate court cannot reverse a trial court's judgment absent properly assigned error.” Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998); accord Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990); San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex.1990). An exception to this rule is that an appellate court can consider matters concerning the trial court's subject-matter jurisdiction sua sponte. Volume Millwork, Inc. v. W. Hous. Airport Corp., 218 S.W.3d 722, 726 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (holding “[l]ack of subject-matter jurisdiction is fundamental error that this Court may properly raise and recognize sua sponte”). We have already recognized that a claim of immunity from liability is not jurisdictional. See Miranda, 133 S.W.3d at 224; Harris County Hosp. Dist., 283 S.W.3d at 842 (holding “immunity from liability is not jurisdictional”). Accordingly, it was not an issue that this Court could raise sua sponte.

Nevertheless, the dissent continues to treat immunity from liability as a jurisdictional bar. Although it “protects from judgment,” immunity from liability “is not jurisdictional.” Harris County Hosp. Dist., 283 S.W.3d at 842. Assuming without deciding that Jesus properly asserted this affirmative defense at trial, asserting an affirmative defense does not convert it into a jurisdictional issue. Even assuming it was error for the trial court to determine that section 216.106 did not apply to Jesus and to enter a judgment against him, these were not jurisdictional errors.

Because Jesus did not raise his affirmative defense of immunity from liability on appeal and because the issue is not jurisdictional, we cannot reach the merits of this argument and it cannot be a basis for reversing the trial court's judgment. See Pat Baker Co., 971 S.W.2d at 450 (holding “an appellate court cannot reverse a trial court's judgment absent properly assigned error”).

C. Analysis

Stephen's claim of slander per se was based on two of Jesus's statements: (1) the voicemail message Jesus left for Lisa stating, “Stephen's hand on your granddaughter's vagina isn't what dictates this” and (2) Jesus's representation to his brother Juan that a doctor confirmed that Stephen had sexually molested L.S.

The second statement is actionable as slander per se. A person of ordinary intelligence would perceive it to impute both a crime and sexual misconduct. See Downing, 348 S.W.3d at 424; Turner, 38 S.W.3d at 114. Furthermore, the statement is a factual statement that can be objectively verified. Zimmer, 257 S.W.3d at 509.

We do not need to determine whether the first statement was actionable as slander per se as well. While the trial court, in its findings of fact and conclusions of law, determined that both statements were actionable as slander per se individually, it awarded damages for both statements without apportioning between the two statements. Neither party objected or asked for additional findings of fact and conclusions of law. See Tex.R. Civ. P. 298 (allowing party to ask court to file additional or amended findings of facts).

In a jury trial, if a jury question improperly asks the jury to apportion liability based on both permissible and impermissible bases for liability, an objection to the form of the question must be raised in order to preserve the issue for appeal. In re A.V., 113 S.W.3d 355, 362 (Tex.2003); Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex.2002). Otherwise, any complaint about the sufficiency of the evidence to support the determination is based on the determination as a whole. In re A.V., 113 S.W.3d at 362; Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex.1995).

The corollary to that rule in bench trials is a party must ask for additional findings of fact and conclusions of law asking for a detailed apportionment of findings between the permissible and impermissible bases for liability. Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex.App.-San Antonio 2004, no pet.). Failure to request additional specific findings will waive any error, and any sufficiency analysis is limited to the determination as a whole. Id.

Jesus did not ask for additional findings of fact and conclusions of law for apportionment of damages between the two statements. Accordingly, our review of the damage award is limited to sufficiency of the damages award as a whole. See id.; In re A.V., 113 S.W.3d at 362. Even if we were to hold that the first statement was not defamatory per se, then, our analysis of the damage award would be the same. As a result, analysis of whether the first statement was defamation per se is not necessary for final disposition of the appeal. See Tex.R.App. P. 47.1 (requiring appellate courts to address every issue raised and necessary to final disposition of the appeal).

Falsity

In the remainder of his second issue, Jesus argues that Stephen failed to prove that the statements were false.

A. Standard of Review

We review the sufficiency of the evidence supporting a trial court's challenged findings of fact by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). When the appellate record includes the reporter's record, the trial court's factual findings, whether express or implied, are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them. See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.-Houston [14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.1985).

In a bench trial, the trial court determines the credibility of the witnesses and the weight to be given their testimony. Woods v. Woods, 193 S.W.3d 720, 726 (Tex.App.-Beaumont 2006, pet. denied); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). In resolving factual disputes, the trial court may believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness's testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). In making credibility determinations, the fact-finder “cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller, 168 S.W.3d at 820. The fact-finder thus is not “free to believe testimony that is conclusively negated by undisputed facts.” Id. However, if the fact finder could reasonably believe the testimony of one witness or disbelieve the testimony of another witness, the appellate court “cannot impose [its] own opinions to the contrary.” Id. at 819.

An appellant may not challenge a trial court's conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). In an appeal from a bench trial, we review a trial court's conclusions of law as legal questions, de novo, and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id.; In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). If we determine that a conclusion of law is erroneous, but that the trial court nevertheless rendered the proper judgment, the error does not require reversal. BMC Software, 83 S.W.3d at 794.

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827. In making this determination, we credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. If the evidence falls within the zone of reasonable disagreement, then we may not substitute our judgment for that of the fact finder. Id. at 822. The fact finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence supporting and contradicting the challenged finding and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); see Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989).

B. Analysis

Before addressing the merits of this issue, we must first address who had the burden of proof and how high that burden was. Which party bears the burden, as well as the height of the burden, to prove truth or falsity of the statement depends on the status of the plaintiff (private, public, or limited-purpose public), the status of the defendant (media or non-media), and the type of issue (public or private).

Jesus does not challenge the trial court's finding that, for purposes of this suit, Stephen is a private plaintiff and Jesus is a non-media defendant. He does assert, however, that this is a public issue instead of a private one. We disagree.

Jesus asserts that this is a public issue because it involves allegations of sexual abuse, which—Jesus asserts—“implicates a question of public importance.” An issue is not a public issue simply because it is a controversy of interest to the public. Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (citing Time, Inc. v. Firestone, 424 U.S. 448, 454, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976)). Instead, the inquiry concerns whether people in the public were debating the specific issue and whether the media was covering that debate. Id. (citing WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex.1998)). A matter can be a public issue because people in the public are discussing it or because people other than the immediate participants in the controversy are likely to feel the impact of its resolution. See McLemore, 978 S.W.2d at 572.

There is no evidence in the record that this matter was being discussed by anyone other than the officials in charge of the various investigations, and Lisa's family. Nor is there any evidence that anyone other than Stephen and Lisa's family members were likely to feel the impact of its resolution. We hold the trial court did not err by determining that this was a private issue.

Jesus also argues that, even though he is a non-media defendant, he should not be treated differently from a media defendant. To support his argument, Jesus relies on a dissenting opinion written by Justice Brennan in the United States Supreme Court. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 23 n. 2, 110 S.Ct. 2695, 2708 n. 2, 111 L.Ed.2d 1 (1990) (Brennan, J., dissenting). Regardless of the merits of Justice Brennan's argument in his dissent, we are bound to follow the majority decisions of the United States Supreme Court on questions of federal constitutional law. Ex Parte Twedell, 158 Tex. 214, 309 S.W.2d 834, 844 (Tex.1958). The United States Supreme Court has drawn a distinction between media and non-media defendants. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776–77, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986) (holding common-law presumption that defamatory speech is false cannot stand when plaintiff sues media defendant for speech of public concern); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–61, 105 S.Ct. 2939, 2945–46, 86 L.Ed.2d 593 (1985) (allowing common-law presumption of falsity to exist for private issues involving private non-media parties). We are bound by this distinction.

Nevertheless, Jesus points out in his brief that there is some inconsistency from this Court on who carries the burden of proving truth or falsity of the statement when a private plaintiff sues a non-media defendant on a private issue. We have held that the plaintiff bears the burden of proving falsity in this situation. El–Khoury v. Kheir, 241 S.W.3d 82, 85 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). We have also held that the defendant bears the burden of proving the statement was substantially true in this situation. Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 73 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Vice v. Kasprzak, 318 S.W.3d 1, 17 n. 9 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); see also Tex. Civ. Prac. & Rem.Code Ann. § 73.005 (establishing truth of statement in action for libel as a defense) (Vernon 2011); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995) (holding truth is affirmative defense to slander in suits between private individuals).

We do not need to resolve this conflict, however. Regardless of who carried the burden of proof in this case, the evidence shows that the second statement was false.

The second statement asserted that a doctor had confirmed that L.S. had been sexually molested by Stephen. Only one medical examination was completed on L.S. The examiners concluded that there was no physical indication of whether L.S. had been sexually molested let alone whether the molestation had been done by Stephen.

We do not need to analyze whether the first statement was false for the same reason we did not need to analyze whether the first statement was defamation per se. The trial court awarded damages for both statements without apportioning between the two statements. Jesus did not ask for additional findings of fact and conclusions of law for apportionment of damages between the two statements. Accordingly, our review of the damage award is limited to sufficiency of the damages award as a whole regardless of whether the first statement was false. See Tagle, 155 S.W.3d at 516; In re A.V., 113 S.W.3d at 362.

We hold that, regardless of who carried the burden of establishing truth or falsity, there is sufficient evidence in the record to support the trial court's finding that the second statement was false. We overrule Jesus's second issue.

Damages

In his first issue, Jesus argues the evidence is insufficient to sustain an award of any damages more than a nominal amount.

A. Standard of Review

As Jesus is challenging the legal and factual sufficiency of the damage award, we apply the same legal and factual sufficiency standards stated in the section on falsity.

B. Analysis

The trial court awarded Stephen $25,000 in actual damages for his claim of slander per se and $50,000 in exemplary damages. For the actual damages, the trial court indicated the award was compensation “for the mental and emotional anguish and damage to reputation that he suffered as a result of Jesus Miranda's defamatory conduct.”

Jesus argues that there is no evidence that Stephen suffered any damage to his reputation based on the two statements that formed the bases for his claim. He also argues that “there is no evidence that [Stephen] suffered mental anguish as a result of the statements.” Finally, he argues that, because the trial court's award of actual damages cannot be sustained, the award of exemplary damages must also be overturned.

“Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.” Bentley, 94 S.W.3d at 604. This means that a defendant is liable to a plaintiff for statements that are defamatory per se “even in the absence of any evidence of harm.” Downing, 348 S.W.3d at 425. “At a minimum, the plaintiff is entitled to a nominal sum, but is not limited to that amount, and the jury may choose to award damages that are ‘substantial.’ ” Id.; see also Texas Disposal, 219 S.W.3d at 581 (holding for defamation per se claims, plaintiff is entitled to recover, “at a minimum, nominal damages”). Accordingly, Stephen was not required to present evidence of damages in order to recover general damages such as loss of reputation and mental anguish.

Jesus relies on El–Khoury to establish that it was Stephen's burden to establish his damages. As Jesus acknowledges, however, El–Khoury was a defamation per quod case. 241 S.W.3d at 85 n. 5. The plaintiff must prove damages in a defamation per quod case. Texas Disposal, 219 S.W.3d at 580. El–Khoury, then, is not applicable on this basis.

Jesus acknowledges that there is a presumption of damages for statements that are defamatory per se. He argues, however, that this presumption is rebuttable. We have not found any Texas cases that address whether the presumption of damages for defamatory per se statements is rebuttable or irrebuttable. Nor do we need to resolve this question here, because, even if the presumption is rebuttable, Jesus failed to establish that Stephen was not harmed by his statements.

When a rebuttable presumption exists, the burden of producing evidence shifts to the party against whom the presumption operates. Hot–Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 730 (Tex.App.-Houston [1st Dist.] 2010, pet. denied). This means it would have been Jesus's burden to disprove that Stephen suffered any damage as a result of his statements.

Jesus argues that “there is no evidence that [Stephen] suffered mental anguish as a result of the statements.” We agree. It was not Stephen's burden, however, to prove the damages he suffered. See Bentley, 94 S.W.3d at 604. Assuming the presumption of damages was rebuttable, it would have been Jesus's burden to disprove the damages. See Hot–Hed, 333 S.W.3d at 730.

Jesus did introduce evidence that Stephen had not sought counseling or medication to help him with any mental anguish he may have suffered. This does not prove, though, that Stephen did not suffer mental anguish. It only means he did not seek counseling or medication as a result. Because there is no evidence of whether Stephen suffered mental anguish, Jesus failed to carry any burden of disproving damages.

The trial court did not subdivide its damages award by mental anguish damage and damage to reputation. Jesus did not file a request for additional or amended findings of fact or conclusions of law. Accordingly, he has waived any complaint regarding the sufficiency of the evidence to support separate damage findings. See Tagle, 155 S.W.3d at 516. Instead, a sufficiency complaint is limited to challenging the sufficiency of the evidence to support the damage award as a whole. Id.

After hearing testimony that Jesus's accusations had caused Lisa's and Stephen's alienation from the rest of Lisa's family and that they no longer felt safe traveling to the valley for family functions, the trial court found that Stephen had suffered injury to his reputation. Nevertheless, we have held that Jesus did not disprove Stephen's mental anguish damage. Even if we agreed that Jesus did disprove Stephen's damage to reputation, he is still only limited to a review of the damages as a whole because of his failure to request a subdivision of damages in the trial court's findings of fact and conclusions of law. Id. Accordingly, we only consider any complaints about the damage award as a whole.

The only argument that Jesus raises to the damages as a whole is his argument that, because Stephen did not present evidence of his damages, he is limited to nominal damages. We disagree. A plaintiff in a defamation-per-se case who does not present evidence of damages is entitled to, at a minimum, nominal damages. See Downing, 348 S.W.3d at 425; Tex. Disposal, 219 S.W.3d at 581. He is not limited to nominal damages, however. See Downing, 348 S.W.3d at 425; Tex. Disposal, 219 S.W.3d at 584.

Jesus's only argument concerning the award of exemplary damages is that, because the trial court's award of actual damages cannot be sustained, the award of exemplary damages must also be overturned. Because we have held that the award of actual damages can be sustained, this argument necessarily fails.

We overrule Jesus's first issue.

Incremental Harm

In his third issue, Jesus encourages us to adopt the “incremental harm theory” for damages in defamation cases. According to Jesus, under the incremental harm theory, if a plaintiff is damaged both by truthful information and false defamatory information, the plaintiff is limited in his damages to the incremental harm done to his reputation by the false defamatory statement. See Austin v. Am. Ass'n of Neurological Surgeons, 253 F.3d 967, 974 (7th Cir.2001).

The incremental harm theory for defamation has not been adopted in Texas. Even if we were to adopt this theory, however, Jesus has not established that Stephen was awarded damages greater than any incremental harm done to him by Jesus's statements. Jesus argues, “An outcry of child sexual abuse, coupled with the child's mention of the name of the alleged abuser to an examining doctor, is just about as damaging to a suspect's reputation as are statements that the suspect is a child abuser, and that a doctor has confirmed the same.” We disagree.

There is a distinct difference between a statement by a three-year-old child that a specific person had touched her vagina and an assertion by an adult that the abuse took place, just as there is a very distinct difference between an inconclusive determination whether any abuse took place and an alleged determination by a doctor that a specific person did in fact molest the child. Jesus has presented us with no argument as to why the damage award should be considered greater than the incremental harm between the truth and his statements.

We overrule Jesus's third issue.

Conclusion

We affirm the judgment of the trial court.

DISSENTING OPINION ON REHEARING

I withdraw my dissenting opinion dated February 16, 2012, and issue this opinion in its stead. I continue to respectfully dissent.

This is a defamation suit arising out of a family dispute over the reporting of the alleged sexual abuse of a three-year-old child to authorities and family members. The trial court awarded damages for defamation per se to the plaintiff, appellee Stephen Byles, the alleged abuser, against appellant, Jesus Miranda, the great-uncle of the child, for two statements Jesus made to family members during the Department of Family and Protective Services' (“DFPS's”) investigation of an outcry made against Byles by Jesus's great-niece, L.S., the granddaughter of Byles's common-law wife and Jesus's sister, Lisa Villareal. Following trial on the merits, the trial court found Jesus not to be immune from liability under Texas Family Code section 261.106, which grants immunity from civil liability for statements made in good faith in the course of an investigation of child abuse. The court then found both statements defamatory, and awarded Byles $75,000 in damages. Jesus appeals the judgment but does not appeal the trial court's ruling denying him immunity from liability under section 261.106. The majority affirms the trial court's judgment based on one of the comments.

I would first address Jesus's immunity from liability as jurisdictional error. The jurisdiction of the trial court to enter judgment on Byles's suit for damages for defamation depended upon Jesus's lack of immunity from personal liability. Therefore, the trial court should have determined Jesus's immunity from liability under Family Code section 261.106 before deciding the merits of Byles's defamation suit. It should have held that Jesus was immune from liability on Byles's claims, and it should have dismissed the defamation suit for failure to state a claim for which relief could be granted. Because the trial court determined the merits of Byles's defamation suit before determining the issue of Jesus's immunity, Jesus was subjected to a judgment for damages which the trial court lacked jurisdiction to enter.

I would vacate the judgment of the trial court, render judgment that Jesus is immune from personal civil liability for Byles's defamation claims under Family Code section 261.106, and dismiss the suit on the ground that the trial court lacked jurisdiction to try the merits of Byles's claim and to enter a judgment for damages for defamation against Jesus. Alternatively, without regard to Jesus's immunity defense, I would hold that the single statement made by Jesus to his brother Juan that the majority affirms as defamatory was both privileged and opinion and was neither shown to be a statement of fact nor proved to be false. Thus, it does not support the trial court's judgment. Therefore, I would reverse and render judgment that Byles take nothing on the merits of his claim.

Additional Facts

I adopt the majority's account of the record but would respectfully add the following facts.

On October 5, 2007, L.S. first volunteered to her mother, Valerie Villareal, and her aunt, Vanessa Villareal, that Byles had touched her vagina. At the time, Valerie, Vanessa, L.S., and L.S.'s younger brother, F.S., were all staying with Lisa (Valerie and Vanessa's mother and L.S.'s grandmother) and Byles. Valerie testified in this case, “I was [giving L.S.] a shower and she told me that she—[Byles] had touched her down there, and that was it. She showed me with a hand gesture, and that was it.” The outcry was made the day after Byles left on a business trip to Singapore. Lisa refused to believe Valerie's report that anything had happened. Valerie did not initially take L.S. to be medically examined.

Jesus found out about the outcry through family members and urged Valerie to take L.S. to be examined, saying he would do so if she would not. His sister, Lisa, refused to talk to him about the allegations. On October 8, 2007, three days after L.S.'s outcry, Valerie took L.S. to Memorial Hermann Hospital Southwest in Houston to be examined. The hospital required that the Child Protective Services division of DFPS (“CPS”) be notified, and CPS and the Austin County Sheriff's Department both opened investigations.

L.S. would not let medical authorities examine her on October 8, but they were able to question her. She named Stephen Byles as a person who had touched her inappropriately. Valerie reported this information to her uncle Jesus.

Jesus kept insisting there be a medical examination of L.S., and Lisa kept resisting. Valerie finally took L.S. into Memorial Hermann Hospital, at Jesus's urging, on October 22, 2007, for another interview and a medical examination. Jesus drove her there. A police officer from Austin County was also present. L.S. repeated her outcry to medical personnel at the Children's Assessment Center (“CAC”) during the interview, naming Byles. The medical examination was inconclusive.

The January 5, 2008 CPS “Investigation Report” introduced into evidence at the trial of this case states, with respect to the October 22, 2007 examination of L.S., that the case had been referred from Austin County CPS to Harris County CPS. It reports that the Austin County social worker said there were no protective issues with the mother but also that

[L.S.] said she was touched and pointed to her vagina by AP [alleged perpetrator] who is her grandmother's boyfriend. [L.S.] was not able to distinguish to whether she was penetrated or how she was touched. A medical was attempted at Memorial but was not successful. OV [outcry victim] had a medical exam done today at the CAC clinic. She said Ms. [Valerie] Villarreal does believe that this happened but her mother [Lisa] does not believe.

The report further states that Valerie reported that “[w]hen everything came out her mother put her out of the house because she does not believe anything happened. Law enforcement is going to follow through on charges but she did not know what the charge would be. He has requested the tape and medical records.” The case was “administratively closed due to it being work[ed] by a social worker and law enforcement.” No tape recordings of the interviews and no medical records of the examinations were introduced into evidence in this case.

The Investigation Report also records several contacts and attempted contacts by CPS with family members in connection with the case. On November 26, 2007, the investigator was unable to reach Lisa Villareal. On November 30, 2007, the report states that Jesus contacted CPS and “advised he is Lisa's brother and is concerned for [L.S. and F.S.] because he heard Lisa was taking them out of the country.” Jesus “advised he spoke with Detective Homes [in Austin County] and he is very upset with Austin County not pursuing this case more seriously.” The investigator reported that Jesus

wanted law enforcement to get Lisa to come in by telling her (untruthfully) that her daughter had attempted suicide but Detective Homes was not interested. I advised Mr. Miranda I was not interested either. Mr. Miranda advised he will do anything to assist in the investigation and to please call him if we have questions.

The CPS report for December 3 records a conversation with Lisa's attorney, who stated that “[Lisa] and the children were living in Houston away from [Byles].” The attorney and CPS arranged to transfer the case to Harris County, in which Houston is located, “so we can get this matter resolved.” On December 4, 2007, Lisa's attorney told CPS where Lisa and the children were living and said it was “okay for CPS to speak with his client directly.”

In early December 2007, Lisa filed proceedings in Harris County to obtain custody of the children. Jesus learned about this and, he testified, called CPS at the direction of the Austin County District Attorney to notify it.1

The Investigation Report reflected that L.S. was interviewed on December 7, 2007, and that she “stated that no one has touched her inappropriately․ She stated that she has not seen [Byles] who is her grandmother['s] boyfriend in a long time.” However, Vanessa Villareal reported to the investigator “that [L.S.] did state to her and her sister that [Byles] was touching her private parts. Vanessa stated that she then told her mother who immediately packed their things and they left for a hotel. She stated that [Byles] has not been around since this incident.”

Similarly, the Investigation Report reflected that, in her January 3, 2008 interview, Valerie

stated that [L.S.] told her that [Byles] touched her private parts. She stated that she took [L.S.] to the Southwest hospital for examination and the test did not disclose anything. She stated that the next day she brought [L.S.] to the Children Assessment Center for [an] interview and examination. She stated that the doctor stated there was discharge[ ] but it was inconclusive if there was sexual abuse. She stated that she does not believe that her mother is allowing contact between [Byles] and children.

The report of the investigator's December 27 interview with Lisa reflects that Lisa “stated that her daughter told her that [L.S.] stated that [Byles] had fondled her. She stated that after hearing this she gather[ed] their things and they went to a hotel. Lisa stated that [Byles] has not had any contact with the children since this incident.”

The Investigation Report concludes: “Disposition and Risk Finding: Ruled Out with factors controlled UTD [unable to determine] for SXAB [sexual abuse] on for [L.S.].”

The CPS “Risk Assessment Report,” also completed on January 5, 2008, and also introduced into evidence in this case, references allegations of neglectful supervision of both L.S. and her little brother, F.S., against Valerie and Lisa, which were “Ruled Out”; a report of sexual abuse of F.S. by Byles, which was “Ruled Out”; and a report of sexual abuse of L.S. by Byles, which the report deemed “Unable to Determine.” The Risk Assessment Report concluded, “Significant risk factors were identified, but family strengths and available resources are sufficient to provide for the child(ren)'s safety for the foreseeable future.” The stated rationale for the finding was that the children were living with Lisa, appeared to be clean and healthy, did not disclose abuse or neglect, and “[t]he children do not have any contact with [Stephen Byles].”

The “Case History of Investigations” noted that the investigation was assigned to an investigator by CPS on November 16, 2007, and completed on January 11, 2008. Like the Risk Assessment Report, the Case History recorded allegations of neglectful supervision of L.S. and her brother, F.S., by both Valerie and Lisa Villarreal, which were “Ruled Out”; allegations of sexual abuse of F.S. by Byles, which was “Ruled Out”; and allegations of sexual abuse of L.S. by Byles, which were marked “Unable to Determine.” The overall disposition was “unable to determine,” and the risk finding was “factors controlled.”

On December 12, 2007, Jesus left a recorded voice-message for Lisa, in which he stated, “Stephen's hand on your granddaughter's vagina isn't what dictates this.” This statement is the first of the two statements by Jesus that the trial court found to be defamatory per se in awarding damages to Byles.

The family court held a hearing on temporary custody of L.S. and F.S. in Lisa's custody suit on January 11, 2008. Before the hearing, Jesus called Valerie, told her not to back down, and said, “What if next time he penetrates your daughter?”

Also in January 2008, Jesus made the second statement on which he was found liable for defamation. Neither the exact date nor the specific content of this oral statement by Jesus to his brother Juan was recorded. The trial court found, however, on the basis of Juan's unobjected-to deposition testimony, which was introduced into evidence, that, “In January 2008, Jesus Miranda published a statement to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by [Stephen Byles].”

On January 29, 2008, the family court entered an order giving Lisa indefinite temporary custody of L.S. and F.S. The order also enjoined Lisa from “allow [ing] the minor children to be in the presence of [Stephen Byles] until further order of this court.” The amicus attorney ultimately represented to the family court that the children would be better off in Lisa and Byles's possession. In May 2008, the family court lifted the portion of its temporary order that prohibited Byles from being in the presence of the two children. Lisa was ultimately awarded custody of L.S. and F.S.

Byles filed the instant defamation suit against Jesus on December 12, 2008, asserting claims of slander per quod, slander per se, and intentional infliction of emotional distress based on Jesus's recorded statement to Lisa, “Stephen's hands on your granddaughter's vagina isn't what dictates this,” and on Juan's report that Jesus had told him after the October 22 examination of L.S. that the doctor had confirmed that Byles had sexually assaulted L.S.

In the trial of this case, Juan testified by deposition, without objection, as to the second statement as follows:

Q: What statement did Mister—or what statements did Jesus make about [Stephen Byles] to put him in a negative light?

A: That he had molested one of my—my niece's kids.

Q: And who did he—well, strike that. Which child?

A: [L.S.]

Q: Okay. And when in time was it that Jesus made this statement to you?

A: This was in January—I believe January of ′08.

Q: Okay. And how did the statement come about? Did he call you, or was it in person?

A: It was a telephone call.

Q: Okay. And he called you and said what?

A: That, you know, he knew that [Byles] had done—had molested that—[L.S.]

Q: Did he express it as an opinion that he thought the child had done—that [Byles] had done this, or that he expressed it as a fact?

A: That he knew.

Q: Did he—did Jesus report to you that he had reported to others negative comments about [Byles]?

A: That he had reported to other family members that—right there and then he did not state that he had told anybody else, no.

Q: Okay. And did you later come into any information that that had happened?

A: Yeah.

Q: What information did you receive?

A: From one of my brothers that had come over to my house and they told me that he had already heard a recording and that they knew that, that she has been molested according to—

Q: And where did they get that information from?

A: My brother.

Q. And your brother, you're talking about your brother, Jesus, reported it to what other family members?

A: My brother Gabriel and my brother Andy as far as I knew because they had came and told me.

Q: Okay. Now, did Jesus make any statements to you with regards to whether or not [L.S.] had been taken to a doctor with regards to the sexual abuse claim?

A: Yes. Yes. Because I—I really hadn't known that she went until he told me.

Q: And what did he tell you about the doctor appointment?

A: That she was a—confirmed that she was molested.

Q: That a doctor had confirmed that she had been sexually molested by [Byles]?

A: Yes.

Q: And he told you that in the same conversation?

A: That was the only conversation I had with him.

In an additional excerpt from his deposition testimony, Juan admitted that Byles had loaned him $5,000, that the arrangement with regard to his paying it back was, “Get back on, you know, financially by self-set in order for me to get the money back to him,” and that Byles had also “always offered to help” with his children's schooling. Juan also testified that the family was deeply divided over the issue of whether Byles had sexually assaulted L.S.; that Jesus had stated that he “knew” that Byles had molested L.S. as a matter of fact, not as his belief; that information about the alleged assault relayed to him by Lisa prior to his conversation with Jesus constituted “allegations” that were potentially being investigated; and that what he himself believed—that the molestation had not occurred because “[Byles] would not do that”—was his opinion.

Following trial, the trial court entered the following findings of fact relevant to this dissent:

11. On December 12, 2007, Jesus Miranda published a statement stating “[Stephen's] hands on your granddaughter's vagina isn't what dictates this.”

12. In January 2008, Jesus Miranda published a statement to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by [Stephen Byles].

13. Jesus Miranda's statements described in ¶¶ 11–12 of the Findings of Fact (“Defamatory Statements”) were defamatory concerning plaintiff.

14. The Defamatory Statements were false.

28. Neither the Defamatory Statements nor [other statements] were made while assisting in the investigation of a report of alleged child abuse or neglect or while testifying or otherwise participating in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect.

The trial court also entered the following conclusions of law:

14. Under Tex. Fam.Code § 261.106(a), a person who in good faith reports or assists in the investigation of alleged child abuse or who testifies or participates in a judicial proceeding arising from a report or investigation of alleged child abuse is immune from civil liability that might otherwise arise.

15. Under Tex. Fam.Code § 261.106(c), a person who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

16. [Miranda] is not immune from liability for [Byles's] claims.

Jurisdiction

Jesus pled in the trial court that he was immune from civil liability for defamation under section 261.106 of the Child Protection Act, Chapter 261 of the Family Code. The trial court tried Jesus's pleading of immunity simultaneously with the merits of Byles's defamation claim, rejected Jesus's immunity defense, and entered judgment against Jesus on Byles's defamation claim. The trial court found that the “Defamatory Statements” did not fall within the protective scope of section 261.106 and concluded that Jesus lacked immunity from liability. Although he appealed the judgment, Jesus did not appeal the trial court's immunity finding and its conclusion of law that he was not immune from liability. Nevertheless, a jurisdictional question cannot be waived; it may be raised, even for the first time, on appeal; it may be raised by the appellate court sua sponte; and the appellate court has jurisdiction to decide both its own and the trial court's jurisdiction. See Tex. Ass'n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex.1993).

I would address the immunity issue as fundamental jurisdictional error on the ground that the trial court erred in denying Jesus immunity that protected him from personal liability and erroneously exercised its jurisdiction to render a judgment for liability against him, despite Byles's failure to state a claim on which relief could be granted.

Family Code section 261.106 provides:

(a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(c) A person who reports the person's own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

Tex. Fam.Code Ann. § 261.106 (Vernon 2008).

Section 261.106's companion statute, Family Code section 261.101, provides, in relevant part:

(a) A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code [“Indecency with a Child”], and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code․

Id. § 261.101 (Vernon 2008).

The trial court found that “the Defamatory Statements” were not “made while assisting in the investigation of a report of alleged child abuse or neglect or while testifying or otherwise participating in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect.” It therefore concluded that Jesus was “not immune from liability for Plaintiff's claims” under subsections 261.106(a) and (c), and it entered a money judgment for $75,000 against Jesus on Byles's defamation claims.

I disagree with the trial court's actions. The trial court should have held a preliminary evidentiary hearing on the jurisdictional facts relating to Jesus's claim of immunity. On the basis of evidence presented, the trial court should have held that Jesus's comments, upon which Byles's defamation suit was based, were privileged statements of opinion made to family members in the course of an investigation of child abuse and that, therefore, Jesus was immune from liability for Byles's suit for defamation under Family Code section 261.106. It should then have concluded that Byles failed to state a claim upon which relief could be granted and that it lacked jurisdiction to enter the money judgment sought. The court should have dismissed the case. Because it did not, I would vacate the judgment as void, and I would enter the judgment the trial court should have entered, dismissing the case for failure to state a claim.

“ ‘[J]urisdiction’ is the power to hear and determine a controversy, which ․ includes the power to decide whether or not a pleading filed in the court is sufficient to state a cause of action․” Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821, 822 (Tex.1945). “As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). “Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable.” Id. Thus, “The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed.” Tex. Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). “[F]or a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought.” Gomez, 891 S.W.2d at 245. When a court initially has jurisdiction to grant relief to resolve a live controversy between parties with proper standing, but the case subsequently becomes non-justiciable, the court retains certain limited authority to dispose of the case by dismissal. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex.2010). If the district court lacks jurisdiction in any of these senses, then its decision does not bind the parties. Gomez, 891 S.W.2d at 245. “[A] decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas law.” Id.

Immunity from liability is an affirmative defense, as opposed to immunity from suit, which deprives a court of subject matter jurisdiction ab initio. See Miranda, 133 S.W.3d at 224. Thus, “[i]mmunity from liability and immunity from suit are two distinct principles.” Tex. Dep't. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (per curiam) (holding that, like other affirmative defenses to liability, immunity from liability must be pleaded or else it is waived). Immunity from liability does not protect a defendant from all suits, but it “protects the [defendant] from judgment even if the Legislature has expressly consented to the suit.” Id. (emphasis added). Thus, immunity from liability bars a suit for monetary relief against the immune defendant, even though it does not bar a suit for other remedies when the defendant has violated the law. See City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex.2009) (stating, in governmental immunity case, “Sovereign immunity protects the State from lawsuits for money damages,” although sovereign immunity does not bar suits for other remedies where defendant has violated law) (quoting Tex. Natural Res. Conservation Comm'n. v. IT–Davy, 74 S.W.3d 849, 853 (Tex.2002)). An action may no longer be continued against a defendant who cannot be held liable, and no judgment may be rendered against him. See Brown v. Gay, 76 Tex. 444, 13 S.W. 472, 472–73 (Tex.1890).2

Whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law. See Miranda, 133 S.W.3d at 226. However, “in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact.” Id. When the existence of jurisdictional facts is challenged, the court must consider evidence when necessary to resolve the jurisdictional issues raised. See id. at 223; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). A trial court “has the right to hear the necessary evidence to enable it to decide as to whether or not it has power to try the case it is sought to have it adjudicate, whether the allegations disclosing such want of jurisdiction appear in the petition of the plaintiff, or in the plea to the jurisdiction by the defendant,” or, as here, in the affirmative-defense pleadings of the defendant. See Miranda, 133 S.W.3d at 226 (quoting Gentry v. Bowser, 2 Tex.Civ.App. 388, 21 S.W. 569, 570 (Tex.Civ.App.-Fort Worth 1893, no writ)). As the party seeking to invoke the trial court's jurisdiction, the plaintiff must “allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause.” See Tex. Ass'n. of Bus., 852 S.W.2d at 446.

The purpose of a plea to the jurisdiction is to establish a reason why the merits of the plaintiff's claim should not be reached. See Bland Indep. Sch. Dist., 34 S.W.3d at 554. However, “a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Id. at 555. The court should, however, “confine itself to the evidence relevant to the jurisdictional issue.” Id. “Whether a determination of subject-matter jurisdiction can be made in a preliminary hearing or should await a fuller development of the merits of the case must be left largely to the trial court's sound exercise of discretion.” Id. at 554. The “ultimate inquiry” in a challenge to the trial court's jurisdiction is whether the facts pled by the plaintiff and not negated, taken as true, and liberally construed “affirmatively demonstrate a claim or claims within the trial court's subject-matter jurisdiction.” Brantley v. Tex. Youth Comm'n., 365 S.W.3d 89, 94 (Tex.App.Austin 2012, no pet.); see also Jud, 184 S.W.2d at 823 (holding that determination whether plaintiff-fireman had alleged cause of action against members of pension fund board, so that trial court had jurisdiction over that claim, could not be determined “in limine on a hearing of the plea to the jurisdiction” but must await development of facts).

When a plaintiff fails to demonstrate a waiver of immunity from liability by the defendant, and thus fails to state a cause of action upon which the relief sought can be granted, and his claim cannot be repled to state a cause of action, the trial court should not permit repleading but should dismiss the suit. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex.2006) (holding that where plaintiff Reata failed to demonstrate waiver of City's immunity from liability under Tort Claims Act plaintiffs claims were properly dismissed and plaintiff was not entitled to replead); see also Brantley, 365 S.W.3d at 94 (stating that where pleadings affirmative negate existence of jurisdiction, plea to jurisdiction may be granted without allowing plaintiff opportunity to amend).3

Here, the trial court heard evidence of the jurisdictional facts upon which Jesus's affirmative defense of immunity was based only during the trial on the merits of Byles's defamation claim. The jurisdictional evidence included evidence as to what Jesus said, to whom he said it, and when and under what circumstances it was said. This evidence went to the fact of Jesus's immunity from liability and, therefore, to Byles's statement of a claim for which Jesus could be held liable and to the trial court's jurisdiction to try Byles's defamation suit and to render a money judgment against Jesus. The jurisdictional issue should have been heard first and the trial court's jurisdiction to proceed to trial on the merits determined preliminarily. This did not happen.

Had the trial court heard the jurisdictional facts first, it is inconceivable to me that a reasonable judge would have permitted Byles's defamation suit against Jesus to proceed to trial on its merits. On October 5, 2007, L.S. made an outcry that she had been sexually abused by Byles and described with gestures what he had done. Section 261.106(a) provides that “[a] person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability․” Tex. Fam.Code Ann. § 261.106(a). No one denied that the outcry was made on October 5 and that neither L.S.'s mother Valerie, her aunt Vanessa, nor her grandmother Lisa initially reported the outcry to authorities. Only Jesus, to whom the incident was reported by Valerie, insisted that L.S. be taken to CAC to be examined. In other words, only Jesus obeyed the mandate of section 261.101 that “[a] person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.” Id. § 261.101(a). All of the other persons with knowledge of the outcry disregarded his or her statutory duty. By contrast, when Valerie agreed to take L.S. to be examined three days later, on October 8, the hospital immediately followed its own mandate under section 261.101(b) by reporting the outcry to CPS and the Austin County Sheriff's office. See id. § 261.101(b). Both CPS and the Austin County Sheriff's Department began investigations.

During her first interview at the hospital on October 8, 2007, L.S. reaffirmed her outcry to medical personnel, naming Byles as the perpetrator. Although medical personnel were unable to perform a physical examination, due to L.S.'s refusal to cooperate, the physician did confirm to Valerie that L.S. had named Byles, and Valerie reported that information to Jesus.

The CPS and Austin County Sheriff's Department investigations were hampered by L.S.'s removal from the house and the county. However, Jesus continued to urge that L.S. be taken back to the CAC for a physical examination. In short, he was the only family member who showed an active interest in cooperating with an ongoing investigation into child sexual abuse by appropriate authorities.

Jesus succeeded in getting Valerie to take L.S. back to the CAC on October 22, 2007, where a second interview was conducted, in which L.S. again named Byles. A physical examination was also performed, but it was inconclusive as to whether L.S. had been assaulted. The medical records are not in the record of this case. However, the January 5, 2008 CPS “Investigation Report” is in the record. It records notes entered by CPS on October 22, 2008, in accordance with the mandate of section 261.001(b).

It is unclear from the record where L.S. was or with whom she was living in October and November 2007. The investigations by CPS and the Austin County Sheriff's Department stalled. Jesus, however, persisted, and Lisa subsequently contacted CPS through her attorney and told them that L.S. was living with her in Houston. That information led to interviews of family members by a CPS investigator in December 2007 and January 2008 and also to Austin County's dropping the investigation because L.S. was now out of its jurisdiction. Lisa also initiated custody proceedings in Harris County seeking to obtain custody of both L.S. and her younger brother, F.S.

The January 5, 2008 CPS “Investigation Report” includes the investigator's report of her interviews with Valerie and other family members. The report records Valerie's statement that L.S. had told her that Byles had “fondled” her and had shown her by gestures what he had done. It also includes the statement that Valerie “stated that the doctor stated that there was discharge[ ] but it was inconclusive if there was sexual abuse.” Lisa and all other family members reported that Byles had been kept away from L.S. after her outcry.

The first statement the trial court found to be defamatory, and on which Jesus's liability is predicated—the December 12, 2007 statement in a voicemail message to Lisa that “[Stephen's] hands on your granddaughter's vagina isn't what dictates this”—was made after L.S. had repeated her outcry several times, after medical personnel were unable to determine whether L.S. had been sexually assaulted, after Lisa had initiated custody proceedings, during the active CPS investigation of the case, and before the hearing on Lisa's custody suit.

The second statement the trial court found to be defamatory—“a statement to Juan Miranda that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by [Stephen Byles]”—was made “[i]n January 2008” to Jesus's brother, also L.S.'s great-uncle. While no exact date is attributed to the second statement, and no context is given for it, it appears that this statement occurred before the January 8, 2008 hearing on Lisa's custody suit. Juan testified in his deposition that this was the only time he talked with Jesus about L.S.'s complaint, that he had already heard about the complaint from his other brothers, who said Jesus had heard a tape of the CAC interview with L.S. (which was not introduced into evidence as proof of the falsity of Jesus's alleged comment), and that the family was deeply divided over whether Byles had sexually assaulted L.S.

If Jesus's unrecorded statement to Juan was not made before the January 8 hearing, it was necessarily made before or within two days after the family court's January 29, 2008 order that awarded custody of L.S. to Lisa and enjoined her from allowing Byles to be around L.S. and F.S. It was also made in the same month as the final CPS Investigation Report, completed January 5, 2008, which recorded interviews with Valerie, Vanessa, and Lisa, all of whom acknowledged and described L.S.'s outcry. And it was made in the same month in which CPS concluded that reports of neglectful supervision by Valerie and Lisa of L.S. and F.S. and of sexual abuse by Byles of L.S. and F.S. were “Ruled Out with factors controlled UTD [unable to determine] for SXAB [sexual abuse] on for [L.S.].”

Jesus's second reported statement was also made in the same month as CPS's “Risk Assessment Report.” This report included the same results of the various investigations as the Investigation Report, noted that Byles had been kept away from the children after L.S.'s outcry, and concluded, “Significant risk factors were identified, but family strengths and available resources are sufficient to provide for the child(ren)'s safety for the foreseeable future.” These risk factors were deemed significant enough by the trial court to support an injunction on January 29, 2008, preventing Lisa from allowing Byles to be around the children until further order of the court.

Upon hearing the evidence regarding Jesus's immunity, along with all the other evidence, in what appears to have been a highly emotionally charged trial involving all—and only—family members, the trial court found that “[n]either the Defamatory Statements nor [other statements] were made while assisting in the investigation of a report of alleged child abuse or neglect or while testifying or otherwise participating in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect,” and it concluded as a matter of law that Jesus was not immune from liability under section 261.106.

The trial court's conclusion that Jesus was not immune for his statements under section 261.106 followed directly from its finding of fact that the Defamatory Statements were not made while assisting in the investigation of a report of alleged child sexual abuse. In my view, this conclusion is rationally unsustainable under the facts of this case.

A trial court's conclusions of law are reviewed de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). The sufficiency of the evidence supporting a trial court's challenged findings of fact following a bench trial is reviewed under the standards used to review the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). When the appellate record includes the reporter's record, the trial court's factual findings, whether express or implied, are not conclusive and may be challenged for legal and factual sufficiency. See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.-Houston [14th Dist.] ), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.1985). The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In reviewing a factual sufficiency challenge, the appellate court considers and weighs all the evidence supporting and contradicting the challenged finding and sets the finding aside only if the evidence is so contrary to the overwhelming weight of the evidence as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). In my view, a reasonable and fair-minded fact finder could not have found that Jesus's comments to Lisa and to his brother Juan during the CPS investigation of L.S.'s outcry were not made while Jesus was assisting in the investigation of a report of child abuse. Therefore, I would hold that the evidence supporting the trial court's finding of fact was so weak as to make its finding clearly wrong and manifestly unjust. And I would hold that the trial court's conclusion of law number sixteen was, therefore, erroneous.

It is also inconceivable to me that a “reasonable and fair-minded” court could find, on the basis of the evidence in this case, that Jesus was anything other than “[a] person acting in good faith who report[ed] or assist[ed] in the investigation of a report of alleged child abuse or neglect or who ․ otherwise participate[d] in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect” or that it could find that the two statements on which the trial court predicated Jesus's liability were outside the scope of the protection extended to such persons by section 261.106(a). See Tex. Fam.Code Ann. § 261.106(a), (c); City of Keller, 168 S.W.3d at 827.

There is no evidence of Jesus's “bad faith or malicious purpose” in urging the investigation of L.S.'s outcry. Jesus Miranda, alone among the many family members aware of L.S.'s outcry, was the only one who took seriously the mandate of section 261.101 that persons “having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter” and the only one who urged that a report be made to authorities about L.S.'s outcry. Tex. Fam.Code Ann. § 261.101(a). Upon investigation by the CAC, the Austin County Sheriff's Department, and CPS, the evidence that Byles had assaulted L.S. was found by CPS to be “significant” enough to support a finding of “unable to determine,” together with a conclusion that the risk was “significant” but “controlled” because Byles had been kept away from L.S. since the date of the outcry. The evidence was also found by the family court to be sufficient to support an order on January 29, 2008, enjoining Lisa from allowing Byles to be around L.S. “until further order of the court.”

I would hold that the trial court erred in finding that Jesus was not immune from liability for defamation for his statements under Family Code section 261.106. I would further hold that the trial court erred in not hearing the jurisdictional facts pertinent to Jesus's immunity defense before proceeding to trial on the merits of Byles's defamation suit and entering judgment on Byles's claim rather than dismissing Byles's suit for lack of jurisdiction due to Byles's failure to state a claim upon which relief could be granted. See Miranda, 133 S.W.3d at 223; see also Brown, 13 S.W. at 472–73 (holding that no judgment can be rendered against defendant who cannot be held liable); Alpert v. Grain, Caton & James, P.C., 178 S.W.3d 398, 405–07 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (affirming dismissal for failure to state cause of action after law firm establish defense of qualified immunity). Accordingly, I would vacate the judgment of the trial court and dismiss the case.

In my opinion, this case presents fundamental jurisdictional error. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (Tex.1957) (per curiam) (holding error to be fundamental when record shows jurisdictional defect). The record clearly shows that Jesus was held liable to Byles for civil damages for defamation in a suit brought against him for his remarks made to family members during an ongoing investigation by CPS, medical authorities, and police of an outcry of sexual abuse by a three-year-old child against Byles. A trial for defamation and a money judgment in favor of a person against whom an outcry of child sexual abuse is made and against a person who urges family members to investigate the outcry has a potentially deeply chilling effect on the reporting of child sexual abuse to persons in a position to investigate the allegations. This suit thus directly undermines the fundamental purpose of the “Protection of the Child Act,” Family Code Chapter 261, which is to protect children from abuse and neglect. See Tex. Fam.Code Ann. §§ 261.101, 261.106 (imposing duty to report suspected child abuse or neglect and child sexual abuse and providing immunity for report).

In support of treating this case as one of fundamental jurisdictional error, I stress that I find absolutely no evidence in the record that Jesus's report was made in bad faith, despite Byles's emotional briefing on appeal and on rehearing, and despite what appears to have been a circus atmosphere involving all family members in the courtroom. The reporting of suspected child abuse is an extremely serious issue, and it was precisely to protect persons who make such reports and to ensure that they will freely report actual outcries of child abuse and will not be punished for their good-faith reports that the immunity statute was passed. The further purpose of that statute is to ensure that threats to the economic well-being—and reputation—of persons who report suspected abuse in good faith will not succeed and will not be rewarded with large financial awards, even if, as here, the sanctions placed on the purported abuser by child protection authorities on the basis of professional evaluations by CPS, medical personnel, and law enforcement authorities are ultimately lifted.

My conviction that this is a case of fundamental jurisdictional error is strengthened by the fact that the majority in this case, after reviewing the record, can find only one statement by Jesus that it concludes supports a defamation finding. For the reasons argued in the next section, I find that lone statement to be privileged, and, even if it were not privileged, it is not a statement of fact that could be or was objectively shown to be false. Rather, it is an undated, unspecific hearsay statement of opinion reportedly made by Jesus to his brother, Juan, that the doctor to whom L.S. was taken following her outcry had stated that the child had been sexually assaulted by Byles. Even if that statement were not privileged, and were not hearsay reported only in Juan's deposition, the burden in a defamation suit would have been on Byles to show exactly what Jesus said, that it was a statement of fact, and that, in fact, the doctor reported that the child was not sexually assaulted or was not assaulted by Byles, that Jesus saw the report and knew for a fact that what he said was false, and that he said it anyway—outside the family and investigatory process—for the purpose of injuring Byles's reputation. There was absolutely no such showing by Byles. Indeed, the tape of L.S.'s CPS interview and her medical records, which might have shown whether Jesus even made a false report, were never introduced into evidence by Byles in support of his defamation claim.

My arguments and authorities on the merits of Byles's defamation claim are set forth below.

Defamation

Were I to reach the merits of Byles's defamation claim, I would sustain Jesus's second issue, and I would reverse the judgment of the trial court and render judgment that Byles take nothing by his claim.

In his second issue, Jesus argues that the trial court erred in holding that he defamed Byles because “at least one of the allegedly defamatory statements, uttered by [Jesus], is inherently incapable of objective verification or disproof,” and, therefore, Byles cannot prove defamation. I would hold that Jesus's statement to Lisa is incapable of objective verification or disproof and that neither that statement nor his statement to Juan was shown to be a false and defamatory statement of fact made without legal excuse, as required for Byles to carry his burden of proof.

A. Legal Excuse

“Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse.” Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). In Randall's, the Texas Supreme Court developed the doctrine of legal excuse in the employer/employee context. It held that “an employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following a report of employee wrongdoing.” Id. “The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate.” Id. The privilege can be defeated only by proof that a statement was motivated by actual malice existing at the time of publication. Id. “In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth.” Id.

In Randall's, store employees communicated to each other that a customer had left the store without paying for a wreath. Id. at 646. The customer admitted that fact but said she did not have the intent to steal. Id. The statement was communicated to several managers on duty on the night of the incident, the security guard who investigated the incident, the assistant store manager, the director of the store, the district manager for the store, and the vice president of Randall's human resources. Id. at 647. The supreme court observed that “all of the employees who gave or received statements about the wreath incident had an interest or duty in the matter.” Id. It held, “Randall's established an absence of malice with regard to these statements by conclusively proving that its employees had reasonable grounds to believe that their statements were true.” Id. (citing Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989)).

Similarly, in this case, Jesus satisfied the criteria set out in Randall's for attachment of a legal excuse by meeting the requirements for immunity from civil liability under Family Code section 261.106. Both statements were “communications made in the course of an investigation following a report of ․ wrongdoing.” Id. at 646. Both were communications made only to “persons having an interest or duty in the matter to which the communications relate[d].” Id. Nor was there any evidence that the statements were made with “actual malice,” i.e., “knowledge of [their] falsity or with reckless disregard as to [their] truth.” Id.

Jesus's statements followed L.S.'s repeated outcries; they followed the statement made to him by Valerie after the October 8, 2007 interview that L.S. had made an additional outcry to the medical personnel who had interviewed her and had named Byles as the perpetrator of the assault; and they followed the report made to him by Valerie after the physical examination of L.S. on October 22 that the physician had stated he was unable to determine whether L.S. had been sexually assaulted by Byles. Also during this time period, CPS issued a report that included Valerie's statement that “the doctor stated there was discharge[ ] but it was inconclusive if there was sexual abuse”; two CPS reports ruled out allegations of neglectful supervision by Valerie and Lisa, but stated that the investigators were “unable to determine” whether Byles had sexually assaulted L.S., and therefore found “significant risk factors” in L.S.'s living with Lisa, but found that those risk factors were controlled by Lisa's prohibiting Byles from being around L.S.; and the family court granted custody of L.S. and F.S. to Lisa, but also enjoined her from allowing Byles to be around the children until further order of the court. There is no evidence that Jesus's statements were made with knowledge of their falsity or with reckless disregard as to their truth. See id. Nor was any evidence introduced—such as the tape of the CPS interview of L.S.—that might have shown Jesus's statements to be, indeed, false statements of facts. Thus, because Jesus's comments were made in the course of his “assist[ing] in the investigation of a report of alleged child abuse” or “otherwise participat[ing] in a judicial proceeding arising from a report ․ or investigation of alleged child abuse,” I would find that his communications were statutorily protected and therefore legally excused. See Tex. Fam.Code Ann. § 261.106(a); Randall's, 891 S.W.2d at 646.

Even if Jesus had failed to establish a legal excuse for his statements under section 261.106, however, I would still hold that the first statement to Lisa was not an objectively verifiable statement of fact as a matter of law and that Byles did not prove that the second statement to Juan was a false statement of fact.

B. Lack of Objective Verifiability

To establish defamation, the plaintiff must prove that the defendant published a false statement of fact. See El–Khoury v. Kheir, 241 S.W.3d 82, 85 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 149 (Tex.App.-Fort Worth 1996, writ denied) (“Defamation involves the publication of a false statement of fact about the plaintiff”). To succeed on a defamation claim, a plaintiff must demonstrate that (1) the defendant published a factual statement (2) that was capable of defamatory meaning (3) concerning the plaintiff (4) while acting with either negligence, if the plaintiff is a private individual, or actual malice, if the plaintiff is a public figure or public official, concerning the truth of the statement. Vice v. Kasprzak, 318 S.W.3d 1, 12 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (citing WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998)). “[A] private individual may recover damages from a publisher or broadcaster of a defamatory falsehood as compensation for actual injury upon a showing that the publisher or broadcaster knew or should have known that the defamatory statement was false.” Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 811, 819 (Tex.1976); A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 80, 82–83 (Tex.App.-Fort Worth 1982, writ ref'd n.r.e.).

By contrast to false statements of fact injurious to reputation, all assertions of opinion are protected by the First Amendment of the United States Constitution and Article 1, Section 8 of the Texas Constitution. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex.1989); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (stating, “Under the First Amendment there is no such thing as a false idea․ But there is no constitutional value in false statements of fact.”). To put it another way, a plaintiff, to establish a cause of action for libel, is required to prove that “the defendant published a false, defamatory statement of fact, rather than an opinion,” or “[i]n other words, the plaintiff must prove that the statements contained false, defamatory facts rather than opinions or characterizations.” Columbia Valley Reg'l. Med. Ctr. v. Bannert, 112 S.W.3d 193, 198 (Tex.App.-Corpus Christi 2003, no pet.).

Whether a statement is an opinion or a statement of fact is a question of law for the courts. Carr, 776 S.W.2d at 570; Bannert, 112 S.W.3d at 198. The threshold issue of whether words are capable of defamatory meaning is also a question of law for the courts. Turner v. KTRK Television, Inc. 38 S.W.3d 103, 114 (Tex.2000); Vice, 318 S.W.3d at 17; Bannert, 112 S.W.3d at 198. The courts construe the statement as a whole in light of the surrounding circumstances based on how a person of ordinary intelligence would perceive it. Vice, 318 S.W.3d at 17; Bannert, 112 S.W.3d at 198. The test as to whether words or statements are defamatory is the reasonable person test. Vice, 318 S.W.3d at 17. “The analysis for distinguishing between an actionable statement of fact and a constitutionally protected expression of opinion focuses on the statement's verifiability and the entire context in which it was made.” Id. at 18. A statement is capable of defamatory meaning if it is both false and injurious to the reputation of the person about whom it is made. See Casso v. Brand, 776 S.W.2d 551, 554 (Tex.1989); see also Gertz, 418 U.S. at 33940, 94 S.Ct. 2997, 3007; N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

In this case, as the majority states, “There is no evidence in the record that this matter was being discussed by anyone other than the officials in charge of the various investigations, and Lisa's family.” Slip Op. at 20. Therefore, this is a private person/private person defamation case, and Byles, as the plaintiff, had the burden of proving that the statements upon which he based his defamation claims were objectively verifiable statements of fact, that they were false and injurious to his reputation, and that they were made negligently, i.e., were below the standard of care of an ordinary person making such a statement, given the entire context of the statement—assuming they were not protected by section 261.106 as statements made by Jesus in good faith in the course of assisting in the investigation of a report of child abuse, i.e., L.S.'s outcry. See Tex. Fam.Code Ann. § 261.106(a).

The first statement, “Stephen's hand on your granddaughter's vagina isn't what dictates this,” is plainly not a verifiable statement of fact, but a statement of opinion or characterization. See Bannert, 112 S.W.3d at 198. As such, it is constitutionally protected speech. See Gertz, 418 U.S. at 33940, 94 S.Ct. at 3007; Carr, 776 S.W.2d at 570.

In the case of the second statement, neither the content nor the entire context of the statement is objectively verifiable. Nor was the statement shown to be a false statement of fact. See Vice, 318 S.W.3d at 18. The out-of-court unrecorded statement by Jesus was made approximately two years before Juan's deposition, in which Juan testified as follows:

Q: What statement did Mister—or what statements did Jesus make about [Byles] to put him in a negative light?

A: That he had molested one of my—my niece's kids.

Q: And who did he—well, strike that. Which child?

A: [L.S.]

Q: Okay. And when in time was it that Jesus made this statement to you?

A: This was in January—I believe January of ′D08.

Q: Okay. And how did the statement come about? Did he call you, or was it in person?

A: It was a telephone call.

Q: Okay. And he called you and said what?

A: That, you know, he knew that Steven had done—had molested that—[L.S.]

Q: Did he express it as an opinion that he thought the child had done—that Steven had done this, or that he expressed it as a fact?

A: That he knew.

Q: Did he—did Jesus report to you that he had reported to others negative comments about [Byles]?

A: That he had reported to other family members that—right there and then he did not state that he had told anybody else, no.

Q: Okay. And did you later come into any information that that had happened?

A: Yeah.

Q: What information did you receive?

A: From one of my brothers that had come over to my house and they told me that he had already heard a recording and that they knew that, that she has been molested according to—

Q: And where did they get that information from?

A: My brother.

Q: And your brother, you're talking about your brother, Jesus, reported it to what other family members?

A: My brother Gabriel and my brother Andy as far as I knew because they had came and told me.

(Emphasis added.) The recording that Juan testified Jesus had heard was not introduced into evidence by Byles as proof of the falsity or recklessness of Jesus's report.

As it is, this testimony does not even support the trial court's finding that Jesus had told Juan “that a doctor had examined L.S. and that the doctor had confirmed that L.S. had been sexually molested by [Stephen Byles].” The closest Juan's deposition testimony comes to conforming to the finding of fact by the trial court is the following:

Q: Okay. Now, did Jesus make any statements to you with regards to whether or not [L.S.] had been taken to a doctor with regards to the sexual abuse claim?

A: Yes. Yes. Because I—I really hadn't known that she went until he told me.

Q: And what did he tell you about the doctor appointment?

A: That she was a—confirmed that she was molested.

Q: That a doctor had confirmed that she had been sexually molested by [Byles]?

A: Yes.

Q: And he told you that in the same conversation?

A: That was the only conversation I had with him.

In this deposition testimony, Juan did no more than confirm words put in his mouth by Byles's attorney after he had failed to use those words in his initial deposition testimony. However, even if the content of Jesus's statement is taken to be what the trial court found it to be—that Jesus told Juan that a doctor had confirmed that L.S. had been sexually molested by Byles—this statement is not shown by anything in the record of this case to be false. Byles had the burden of establishing the falsity of Jesus's statement, and he failed to include in the record either the tape of the CAC interview, which Juan testified Jesus had heard, or L.S.'s medical records that might have shown that Jesus's report was false. Therefore, Byles failed to carry his burden of proof. See Foster, 541 S.W.2d at 811; El–Khoury, 241 S.W.3d at 85; AccuBanc Mortg., 93 S.W.2d at 149. Moreover, Valerie's statement that the doctor reported to her on October 22, 2007, that “there was discharge[ ] but it was inconclusive if there was sexual abuse” tends to confirm the substantial truth of the statement, or, at least, tends to negate the statement's having been made recklessly and with disregard of its truth or with actual knowledge of its falsity.

Furthermore, because Jesus's statement to Juan was supported by evidence deemed credible enough by both CPS and the family court to justify a court order enjoining Lisa from allowing Byles to be around L.S., it cannot be said that Jesus's statement was unreasonable or that his statement was made in bad faith. See Vice, 318 S.W.3d at 17 (setting out reasonable person test); Tex. Fam.Code Ann. § 261.106(c) (stating that immunity does not extend to statements made in bad faith).

Were I to reach the merits of Byles's defamation claim, I would hold that Jesus's statement to Lisa was either an expression of Jesus's opinion or his characterization of what he had been told by Valerie and had heard on the recording and that Byles did not prove that Jesus's statement to Juan was false. See Bannert, 112 S.W.3d at 198. Nor did Byles show that the statements on which Jesus's liability was predicated were made negligently or with reckless disregard for the truth. Rather, they were made in the context of the investigation of an outcry which Jesus and all persons with knowledge were required by Family Code section 261.101 to report, and they have evidentiary support in the record. Therefore, even if I did not believe, as I do, that the trial court's entry of a judgment against Jesus for damages for defamation was barred by Jesus's statutory immunity from civil liability under Family Code section 261.106, I would hold that the trial court erred in entering judgment in favor of Byles on his defamation claims.

Accordingly, I would sustain appellant's second issue.

Conclusion

This is a case of fundamental jurisdictional error. I believe the trial court erred in trying appellant Jesus Miranda's defense of immunity from liability under Family Code section 261.106 for statements made to family members during the course of an investigation of alleged child sexual abuse simultaneously with its trial of the merits of appellee Stephen Byles's defamation suit against Jesus based on those statements; that it erred in finding Jesus not to be immune from liability for his statements; and that it erred in exercising jurisdiction over the merits of Byles's defamation claim and in rendering a judgment for damages against Jesus on that defamation claim.

I would hold that Jesus was immune from civil liability on Byles's defamation claim under Family Code section 261.106. Therefore, the trial court should have granted Jesus's claim of immunity from liability, and it should have dismissed Byles's defamation claim for failure to state a claim upon which relief could be granted.

Even if I were to find that Jesus was not immune from liability for his statements and that, therefore, the trial court did have jurisdiction to enter a money judgment against him for defamation, I would still find that the single hearsay statement allegedly made by Jesus to his brother that the majority agrees is defamatory was not shown to be a false statement of fact capable of supporting a judgment for liability for defamation. Accordingly, I respectfully dissent from the majority's opinion and judgment affirming the trial court's judgment.

I would vacate the judgment of the trial court and render the judgment the trial court should have rendered, dismissing the case for lack of jurisdiction. Alternatively, I would reverse and render judgment that Byles take nothing by his claims.

LAURA CARTER HIGLEY, Justice.

Justice KEYES, dissenting.

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