Anthony Montano, Christine Montano, and Michael Rosman v. Kyle Cronan ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00232-CV
__________________
ANTHONY MONTANO, CHRISTINE MONTANO
AND MICHAEL ROSMAN, Appellants
V.
KYLE CRONAN, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 20-06-06390-CV
__________________________________________________________________
MEMORANDUM OPINION
In this accelerated interlocutory appeal, Appellants Anthony Montano,
Christine Montano, and Michael Rosman (“Defendants” or “Appellants”) appeal the
trial court’s order denying their motion to dismiss pursuant to the Texas Citizens
Participation Act (“TCPA”). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-
27.011, 51.014(a)(12) (authorizing interlocutory appeal of an order denying motion
to dismiss filed under TCPA section 27.003). The TCPA applies to “a legal action
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[that] is based on or is in response to a party’s exercise of the right of free speech,
right to petition, or right of association or arises from any act of that party in
furtherance of the party’s communication or conduct described by Section
27.010(b)[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
We affirm.
Background
Appellee Kyle Cronan (“Plaintiff” or “Appellee”) filed an original petition
against the Defendants for defamation. Cronan alleged that on May 7, 2020, Michael
Rosman and Anthony Montano sent Cronan “harassing and defamatory statements”
to Cronan’s cell phone, alleging that Cronan “was sneaking about in the woods in
order to take pictures of underage girls.” In his petition Cronan also alleged that on
May 13, 2020, Cronan was in the parking lot of Northshore Park when Anthony and
Christine Montano pulled up in their vehicle and “openly[]” accused Cronan of being
a “pervert” and a “pedophile[,]” in front of a Woodlands Township employee.
Cronan alleged that these statements were defamatory per se, they caused Cronan’s
reputation to be severely injured, and that Cronan suffered extreme mental anguish,
public humiliation, and embarrassment.
The Defendants subsequently filed a motion to dismiss pursuant to the TCPA.
Therein, the Defendants argued that the lawsuit is based on Defendants’ exercise of
the right of free speech and the alleged defamatory statements on their face are about
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matters of public concern—“the privacy interests of underage girls Plaintiff was
photographing and the criminal nature of Plaintiff’s activity[.]”
In his response to the Defendants’ motion to dismiss, Cronan argued that the
court should deny the motion because there is clear and specific evidence of each
element of Cronan’s claim for defamation, and damages are presumed because
Defendants’ statements about Cronan that he is “a pervert, a pedophile, and a sexual
deviant” are defamatory per se. In an affidavit attached to his response, Cronan stated
that he and the Defendants are all involved in competitive rowing and are affiliated
with rival clubs—Parati Competitive Rowing (“Parati”) and the Rowing Club of the
Woodlands. Cronan further alleged that the Defendants “hold significant resentment
towards [Cronan] stemming from the injury to [his] daughter and ensuing fallout,
the suit concerning those injuries, and [Cronan’s] participation in the SafeSport
complaints to US Rowing and US Rowing’s subsequent investigation.” Cronan also
stated in his affidavit that Parati had violated numerous regulations relating to
COVID-19 and general student safety.
Cronan stated in his affidavit that, on May 13, 2020, he arrived at the parking
lot near the rowing boathouses at Northshore Park shortly after an incident “in which
Defendants, along with a number of kids and adults involved with Parati, had
assaulted and attacked Ken Torrance.” According to Cronan, while Cronan was
talking with an employee of The Woodlands Township, Trohn Trabona, whom
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Cronan understood was there to investigate the incident involving Defendants, Parati
and Torrance, Michael Rosman pointed at Cronan and yelled across the parking lot
“There is the other pervert!” and multiple families, adults, and children were present.
Cronan stated in his affidavit that Trabona heard what Rosman yelled at him and
said to Cronan, “Did he just call you a pervert?” Cronan further stated in his affidavit
that the Montanos then stopped their vehicle near where Cronan was sitting with
Trabona, they rolled down the window of their vehicle, and they shouted “That guy
is a pedophile! He is a pervert! Watch your kids—h[e] is a pervert! [] Taking pictures
of girls, you pedophile!” According to Cronan, Trabona commented on these
accusations and “a multitude of families and other adults and children [were] around
and well within earshot.” According to Cronan, students in the area recorded the
incident and posted it to social media, which caused Cronan and his daughter shame
and embarrassment. Cronan further stated in his affidavit that the Defendants knew
that Cronan was not a pervert or a pedophile, that their purpose was to falsely accuse
Cronan of being a sexual deviant to damage his reputation, and that their actions
were consistent with other acts Defendants took to “get back” at him.
Cronan denied being a pervert or pedophile or having unnatural sexual
attractions to minors. Cronan alleged that Defendants’ accusations were “simply
meant to discredit Plaintiff and to retaliate against him for reporting SafeSport
violations to US Rowing and for suing Defendants and Parati Competitive Rowing
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for the injuries they inflicted on Plaintiff’s minor daughter.” Cronan argued that he
had provided sufficient facts to state a prima facie claim for defamation because he
had alleged that the Defendants made false defamatory statements (calling him a
pervert and pedophile), the statements were made publicly where others could hear
them, and no proof of damages is required because the statements were defamatory
per se. Even so, Cronan alleged that he has lost clients in his work as a financial
advisor because of the statements, and that his reputation has been damaged. Cronan
further asserted that he has lost sleep due to embarrassment and shame, and the
incident has strained his relationship with his daughter.
At a hearing on the motion to dismiss, the Defendants argued that Cronan
“was suspended from the Parati Rowing Club for three months and started
photographing the minors while working out in order to create some evidence of
violations of the club rules and US Rowing rules.” Defendants argued that there was
no evidence that the alleged defamatory statements were made except for Cronan’s
own testimony. The Defendants also argued that Cronan’s denial that he is a
pedophile is inadequate and an expert opinion would be required, that actual malice
is required to prove defamation per se and that “qualified privilege [] applies when
they’re reporting a criminal activity[]” because Cronan’s affidavit alleged that the
Township employee was investigating another incident at the time.
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Cronan argued that his affidavit specifically identified the statements made,
by whom, where they were made, and that they were made publicly. Cronan also
argued the statements were defamatory per se because they were allegations of
serious sexual misconduct, that no privilege for reporting a crime applies, even if
Trabona was there investigating another incident, because “[t]his is people yelling
across parking lots, yelling out of cars in front of groups of children.”
The trial court signed an order denying Defendants’ motion to dismiss under
the TCPA. Defendants timely filed their notice of appeal.
Issues
In their first issue, Appellants argue that their speech was protected under the
TCPA because the statements attributed to them constitute communications about a
matter of public concern because of the privacy interests of the underage girls
Cronan was photographing and the perceived criminal nature of Cronan’s activity.
In Appellants’ second issue, Appellants argue that Cronan did not present
clear and specific evidence of the elements of a defamation claim against Appellants.
According to Appellants, Cronan failed to present clear and specific evidence of
publication, he did not present an affidavit from anyone who actually heard the
alleged defamatory statements, the text messages on which Cronan relies were not
sent to a third party, Cronan presented no evidence that the incidents were published
to social media, and Cronan relies solely on his own affidavit. Appellants also argue
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that Cronan is unable to establish the statements about him are false because “they
are neither factual nor supported by any expert testimony.” Appellants further argue
that Cronan did not present clear and specific evidence of actual malice, which is
required because a qualified privilege applies to reporting criminal activity.
Appellants argue that the statements attributed to them were made in connection
with a criminal investigation because Cronan’s affidavit alleged that the incident at
Northshore Park occurred when Trabona was there to investigate the altercation
involving Defendants, Parati and Torrance. Appellants also argue that, even if actual
malice is not required, Cronan’s allegations are deficient because he did not present
evidence that the Appellants knew their alleged statements were false.
Analysis
A three-step burden shifting mechanism is triggered by the filing of a motion
to dismiss under the TCPA. In re Lipsky, 460 S.W.3d 579, 586-87 (Tex. 2015). The
movant bears the initial burden to demonstrate that the legal action is based on or is
in response to the movant’s exercise of the right of free speech, the right of
association, or the right to petition. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).
If the movant meets his initial burden, the burden shifts to the nonmovant to establish
by clear and specific evidence a prima facie case for each essential element of his
claim. Id. § 27.005(c). If the nonmovant fails to meet his burden, the trial court must
dismiss the legal action. See id. If the nonmovant satisfies its burden, the trial court
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must nevertheless dismiss the legal action if the movant establishes each essential
element of a valid defense to the nonmovant’s claim by a preponderance of the
evidence. Id. § 27.005(d).
In determining whether the nonmovant’s claim is subject to or should be
dismissed under the TCPA, the court shall consider the pleadings, evidence a court
could consider under Rule 166a of the Texas Rules of Civil Procedure and
supporting and opposing affidavits stating the facts on which the liability or defense
is based. Id. § 27.006(a). On appeal, the trial court’s ruling on a motion to dismiss
under the TCPA is reviewed de novo, and the pleadings and evidence are viewed in
the light most favorable to the nonmovant. Sanchez v. Striever, 614 S.W.3d 233, 242
(Tex. App.—Houston [14th Dist.] 2020, no pet.); Maldonado v. Franklin, No. 04-
18-00819-CV, 2019 Tex. App. LEXIS 8747, at *7 (Tex. App.—San Antonio Sept.
30, 2019, no pet.) (mem. op.).
The TCPA protects citizens from retaliatory lawsuits that seek to intimidate
or silence them on matters of public concern. Lipsky, 460 S.W.3d at 584. We
construe the TCPA “liberally to effectuate its purpose and intent fully.” See Tex.
Civ. Prac. & Rem. Code Ann. § 27.011(b); see State ex rel. Best v. Harper, 562
S.W.3d 1, 11 (Tex. 2018). The stated purpose of the Act “is to encourage and
safeguard the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government to the maximum extent permitted by
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law and, at the same time, protect the rights of a person to file meritorious lawsuits
for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002.
The burden is on the nonmovant to show by clear and specific evidence a
prima facie case for each essential element of the claim in question, but it is not a
heightened evidentiary burden. See Andrews Cty. v. Sierra Club, 463 S.W.3d 867,
867 (Tex. 2015) (per curiam) (citing Lipsky, 460 S.W.3d at 587). A “prima facie
case” refers to evidence sufficient as a matter of law to establish a given fact if it is
not rebutted or contradicted. See Lipsky, 460 S.W.3d at 590 (citing Simonds v.
Stanolind Oil & Gas Co., 136 S.W.2d 207, 209 (1940)). It is the “‘minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.’” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (per curiam)). Therefore, in the context of a motion to dismiss under
the TCPA in a lawsuit for defamation, mere notice pleading will not suffice to defeat
the motion, and
. . . a plaintiff must provide enough detail to show the factual basis for
its claim. In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said,
the defamatory nature of the statements, and how they damaged the
plaintiff should be sufficient to resist a TCPA motion to dismiss.
See id. at 590-91. Conclusory statements in an affidavit are not sufficient to satisfy
the TCPA’s requirement of “clear and specific evidence” of a prima facie case. See
id. at 592. Direct evidence of damages is not required, but the evidence must be
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sufficient to allow a rational inference that some damages naturally flowed from the
defendant’s conduct. S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d
843, 847 (Tex. 2018).
We may consider circumstantial evidence to determine whether the parties
met their burdens under the TCPA. See Sierra Club, 463 S.W.3d at 867; Lipsky, 460
S.W.3d at 589. In conducting our analysis, “‘we ascertain and give effect to the
Legislature’s intent as expressed by the language of the statute.’” Harper, 562
S.W.3d at 11 (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008)). We construe the statute’s words according to their plain and common
meaning, “unless a contrary intention is apparent from the context, or unless such a
construction leads to absurd results.” Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex.
2018). We decide the applicability of the TCPA based on “a holistic review” of the
pleadings and supporting and opposing affidavits. See Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018).
The TCPA defines the “[e]xercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(3). The TCPA also defines “[m]atter of public
concern” as:
. . . a statement or activity regarding:
(A) a public official, public figure, or other person who has drawn
substantial public attention due to the person’s official acts, fame,
notoriety, or celebrity;
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(B) a matter of political, social, or other interest to the community; or
(C) a subject of concern to the public.
Id. § 27.001(7). The phrase “matter of public concern” commonly refers to matters
“of political, social, or other concern to the community,” and a subject of general
interest and of value and concern to the public, as opposed to purely private matters.
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex.
2019) (citing Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)); see also
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (explaining
that communications related to health and safety are a matter of public concern under
the TCPA) (citing Lippincott v. Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015)).
“Speech deals with matters of public concern when it can ‘be fairly considered as
relating to any matter of political, social, or other concern to the community.’”
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick v. Myers, 461 U.S.
138, 146 (1983)); see also Creative Oil & Gas, LLC, 591 S.W.3d at 135. Public
matters include, among other things, “‘commission of crime, prosecutions resulting
from it, and judicial proceedings arising from the prosecutions.’” See Brady, 515
S.W.3d at 884 (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975)). A
“matter of public concern” includes an issue related to health, safety, or community
well-being. See ExxonMobil Pipeline Co., 512 S.W.3d at 899. To be protected under
the TCPA, the communication at issue need not specifically mention the matter of
public concern. See Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d 630, 641
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(Tex. App.—Houston [14th Dist.] 2020, pet. dism’d) (citing ExxonMobil Pipeline
Co., 512 S.W.3d at 900). In addition, the communication need not have more than a
tangential relationship to a matter of public concern. See ExxonMobil Pipeline Co.,
512 S.W.3d at 900.
In determining whether the statements attributed to the Defendants are “a
matter of public concern” under the TCPA, we are not required to determine the
truth or falsity of those statements. See In re Lipsky, 411 S.W.3d 530, 543 (Tex.
App.—Fort Worth 2013, orig. proceeding), mand. denied, 460 S.W.3d 579 (Tex.
2015). Defendants argue there is “a strong public interest in protecting children from
physical and sexual abuse.” See Bird v. W.C.W., 868 S.W.2d 767, 772 (Tex. 1994).
And the Defendants argue that “reports of criminal activity have been considered
matters of public concern in other cases for the purpose of determining whether the
TCPA applies.” See Adams, 547 S.W.3d at 897 (explaining that the TCPA applies
to statements about an HOA’s alleged criminal activity); Robert B. James, DDS,
Inc., v. Elkins, 553 S.W.3d 596, 619-20 (Tex. App.—San Antonio 2018, pet. denied)
(explaining that the TCPA applies to statements made to the police and an insurance
company alleging misappropriation and theft of property against a dentist).
The pleadings and evidence in this case reflect that the communications arise
out of the parties’ participation in competitive rowing clubs and involvement with
US Rowing. In his affidavit, Plaintiff averred that he had reported that one of the
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rowing clubs had violated US Rowing regulations related to COVID-19 and student
safety and US Rowing had made an investigation of SafeSport complaints. Plaintiff
stated that he had filed a separate lawsuit for injuries his daughter sustained at one
of the rowing clubs. Plaintiff alleged that the statements made by the Defendants on
May 13, 2020, occurred “in the parking lot near the rowing boathouses at Northshore
Park” and occurred shortly after an incident in which the Defendants were involved
and during which someone was “assaulted and attacked[.]” At the time the allegedly
defamatory comments were made, Plaintiff was talking with a Township employee
who was present to investigate the altercation. According to Plaintiff, Defendants’
communications occurred in the presence of “a multitude of families and other adults
and children[.]”
Considering the record as a whole, we conclude that the statements attributed
to the Defendants are not purely private matters, and they were based on or were in
response to a party’s exercise of the right of free speech and pertain to “a subject of
general interest and of value and concern to the public” because of the involvement
of the rowing clubs, US Rowing, and safety and welfare concerns. See Snyder, 562
U.S. at 444; ExxonMobil Pipeline Co., 512 S.W.3d at 899; Creative Oil & Gas, LLC,
591 S.W.3d at 136. Plaintiff’s lawsuit is factually predicated on the Defendants’
alleged communications, and the Defendants sufficiently demonstrated their
communications were within the scope of the TCPA. See Dyer v. Medoc Health
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Servs., LLC, 573 S.W.3d 418, 428 (Tex. App.—Dallas 2019, pet. denied); see also
Adams, 547 S.W.3d at 897.1
The burden then shifted to Cronan to establish by clear and specific evidence
the elements of his defamation claim. The elements of a defamation claim are (1) the
publication of a false statement of fact to a third party, (2) that was defamatory
concerning the plaintiff, (3) with the requisite degree of fault, and (4) in some cases,
damages. Lipsky, 460 S.W.3d at 593 (citing WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998); Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys.
Landfill, Inc., 434 S.W.3d 142, 146 n.7 (Tex. 2014)). The status of the person
allegedly defamed determines the requisite degree of fault. Id. A private individual
need only prove negligence, whereas a public figure or official must prove actual
malice. Id.The plaintiff must plead and prove damages, unless the defamatory statements
are defamatory per se. Id. Defamation per se refers to statements that are so
obviously harmful that general damages may be presumed. Id. “[A]ccusing someone
of a crime, of having a foul or loathsome disease, or of engaging in serious sexual
1
The Texas Supreme Court has explained that at this stage of the litigation,
we do not decide whether the challenged communications were “valid, partly valid,
or completely concocted[.]” See Adams v. Starside Custom Builders, LLC, 547
S.W.3d 890, 897 (Tex. 2018). Because we conclude that the communications
allegedly made on May 13, 2020, pertain to communications made in connection
with a matter of public concern as encompassed under the TCPA, we need not also
address the text messages made on or about May 7, 2020. See Tex. R. App. P. 47.1.
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misconduct” constitutes defamation per se. Dallas Morning News, Inc. v. Tatum,
554 S.W.3d 614, 638 (Tex. 2018) (citing Lipsky, 460 S.W.3d at 596; Moore v.
Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco 2005, no pet.)). Whether a
statement is defamatory per se is generally a question of law. See Lipsky, 460 S.W.3d
at 596.
In this case, Plaintiff’s claim for defamation arises from (1) allegations about
certain text messages he received from Michael Rosman and Anthony Montano on
or about May 7, 2020, and (2) allegations about verbal statements Defendants made
on May 13, 2020, at Northshore Park. We examine the evidence as to each.
Plaintiff did not present any evidence that the text messages were published
to a third party, which is an essential element of a claim for defamation. Therefore,
we cannot say there is clear and specific evidence of a prima facie claim for
defamation based on the text messages.
Next, we examine the evidence as to the verbal statements allegedly made on
May 13. Cronan stated in his affidavit that Michael Rosman pointed at him and
yelled, “There is the other pervert.” Cronan further alleged that Anthony and
Christine Montano shouted at him and said, “That guy is a pedophile! He is a pervert!
Watch your kids—h[e] is a pervert! [] Taking pictures of girls, you pedophile!”
Because these statements are accusations of serious sexual misconduct, we conclude
they are defamatory per se and that Cronan has presented clear and specific evidence
15
of “what was said” and “the defamatory nature of the statements.” See Lipsky, 460
S.W.3d at 591, 596; Tatum, 554 S.W.3d at 638. Cronan stated in his affidavit that
the statements were made in Northshore Park on May 13, 2020, and that numerous
children and adults were present and within earshot of the Defendants when they
made the alleged statements, and he specifically named at least one person he knew
had overheard the comments. Accordingly, we conclude that Cronan presented clear
and specific evidence of “when” and “where” the statements were made. See Lipsky,
460 S.W.3d at 591.
Because we conclude that the statements are defamatory per se, Cronan need
not prove actual damages. See id. at 593, 596 (“Pleading and proof of particular
damage is not required to prevail on a claim of defamation per se[]” nor to defeat a
TCPA motion to dismiss.). Nevertheless, Cronan’s affidavit alleged that he has lost
clients in his business as a financial advisor, his relationship with his daughter has
been strained, and he has suffered embarrassment, shame, and difficulty sleeping.
Cronan’s affidavit therefore presented clear and specific evidence of how
Defendants’ statements damaged him. See id. at 591; see also Innovative Block of S.
Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020)
(explaining that in Texas defamation suits, damages for injury to reputation, personal
humiliation, and mental anguish and suffering are considered general damages).
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To state a prima facie claim, Cronan must also present evidence of negligence.
See Lipsky, 460 S.W.3d at 593. Cronan’s affidavit alleged that the Defendants knew
he is not a pervert or pedophile. Cronan also alleged that the Defendants “hold
significant resentment” towards Cronan over events connected to the parties’
participation in rowing clubs, Cronan’s participation in SafeSport complaints to US
Rowing and US Rowing’s subsequent investigation, and a separate lawsuit Cronan
filed concerning his daughter’s injuries. Cronan argued in his response to the motion
to dismiss, that the parties are affiliated with rival rowing clubs, and the Defendants
“have been unable to leave any rivalry in the domain of sportsman-like competition
[and] have attempted to engage in a smear campaign by casting Plaintiff as a sexual
pervert and pedophile.” On this record, we conclude that Cronan has presented at
least circumstantial evidence that Defendants acted negligently when making the
statements that are the subject of the lawsuit. See French v. French, 385 S.W.3d 61,
73 (Tex. App.—Waco 2012, pet. denied) (“The plaintiff must show that the
defendant knew or should have known that the defamatory statement was false.”).
Defamation also requires publication to a third party. Lipsky, 460 S.W.3d at
593. Publication occurs if the defamatory statements are communicated orally, in
writing, or in print to some third person who is “capable of understanding their
defamatory import and in such a way that the third person did so understand.” Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). Cronan’s affidavit
17
alleged that Defendants’ statements in Northshore Park occurred “within earshot” of
“multiple families, adults, and children[.]” Cronan also alleged that some students
who were present at the time recorded the incident and posted it to social media and
that his daughter had seen the social media posts. According to Cronan’s affidavit,
after Rosman shouted “There is the other pervert!”, the Township employee with
whom Cronan had been talking, said to Cronan, “Did he just call you a pervert?”
Appellants argue that Cronan’s allegations that his daughter saw social media
postings of the incident and the statement by Trabona are inadmissible hearsay
offered for the truth of the matter asserted. According to Appellants, “the Court
should not consider Cronan’s conclusory and speculative statements about what
unidentified bystanders may have heard or understood[.]” The trial court did not rule
on the hearsay objections but stated:
If Mr. Cronan testifies that it was a statement that was made to him and
to this person from the township, why is his affidavit insufficient to
provide me with some evidence of that fact? [] I don’t know if it’s
hearsay considering that the whole allegation is that it’s defamatory.
Cronan argued:
[T]he Plaintiff is fully within his ability to provide an affidavit about
what he has personal knowledge of. All he needs are basic facts, all of
which are in his personal knowledge: the fact that who said what, what
was said, where it was said, when it was said.
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Appellants failed to preserve their hearsay objection to the affidavit by failing to
obtain a ruling from the trial court. See Tex. R. App. P. 33.1.2
We note that under the TCPA, when determining whether a legal action is
subject to or should be dismissed, the trial “court shall consider the pleadings,
evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure,
and supporting and opposing affidavits stating the facts on which the liability or
defense is based.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a). Based upon the
record before us, we cannot say the trial court erred in denying the TCPA motion.
Cronan presented the trial court circumstantial evidence that Defendants’
statements were published to a third party who was capable of understanding and
did understand the statements to be defamatory. See Rincones, 520 S.W.3d at 579.
Viewing the pleadings and evidence in the light most favorable to the nonmovant,
we conclude that Cronan’s affidavit presented clear and specific evidence of
publication to a third party. See Sanchez, 614 S.W.3d at 242.
Appellees also claim a qualified privilege because “the statements attributed
to [them] were made in connection with a criminal investigation and to report a
crime.” Where the plaintiff is a private individual, “‘[i]f the circumstances support
2
Cronan also argued that the automatic stay required when a TCPA motion
to dismiss is filed precluded additional discovery, such as subpoenaing social media
evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c) (“Except as provided
by Section 27.006(b), on the filing of a motion under this section, all discovery in
the legal action is suspended until the court has ruled on the motion to dismiss.”).
19
application of [a] qualified privilege, the plaintiff must prove that the defendant
acted with actual malice, rather than mere negligence, in publishing the statement.’”
Robert B. James, DDS, Inc., 553 S.W.3d at 610 (quoting Espinosa v. Aaron’s Rents,
Inc., 484 S.W.3d 533, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.)). A
qualified privilege exists for reporting a crime to law enforcement. Id.; French, 385
S.W.3d at 73; Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.—Corpus
Christi 1977, no writ) (“[T]he communication of alleged wrongful acts to an official
authorized to protect the public from such acts is a qualified privilege.”); cf.
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“[A]n
employer has a conditional or qualified privilege that attaches to communications
made in the course of an investigation following a report of employee
wrongdoing.”). Defendants who assert a qualified privilege bear the burden of
proving their statement is covered by the privilege. See Neely v. Wilson, 418 S.W.3d
52, 62, 67-69 (Tex. 2013); Saudi v. Brieven, 176 S.W.3d 108, 118 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied).
In this case, Defendants argued that a qualified privilege applies to the
statements they allegedly made on May 13, 2020, because they were made “while a
Woodlands Township employee [] was allegedly investigating an altercation that
had just occurred.” According to the Defendants, Cronan’s affidavit “indicates the
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statements attributed to Defendants were made in connection with a criminal
investigation and to report a crime.”
Alleging that someone is a “pervert” or a “pedophile” does not necessarily
impute a specific crime although the words may indeed have a disparaging
implication. As commonly understood, to call someone a “pervert” implies that
person is “one that has been perverted specifically [] one given to some form of
sexual perversion.” Pervert, Merriam-Webster, https://www.merriam-
webster.com/dictionary/pervert (last visited July 1, 2021). Similarly, as commonly
understood, to call someone a “pedophile” implies that person is “one affected with
pedophilia,” which is defined as a “sexual perversion in which children are the
preferred sexual object specifically [] a psychiatric disorder in which an adult has
sexual fantasies about or engages in sexual acts with a prepubescent child.”
Pedophile, Merriam-Webster, https://www.merriam-webster.com/dictionary/
pedophile (last visited July 1, 2021); Pedophilia, Merriam-Webster,
https://www.merriam-webster.com/dictionary/pedophilia (last visited July 1, 2021).
In the context in which these words were used in our facts, the Defendants
allege they were reporting a crime at the time they used the words to refer to the
Plaintiff. But Defendants failed to identify the investigator and Woodlands
Township employee as a law enforcement officer, nor do they establish that they
were reporting a crime at the time they yelled the statements and allegations in the
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park. Cronan’s affidavit alleges that the Woodlands employee was investigating a
different matter and “altercation” involving the Defendants, and not the allegations
the Defendants yelled at Plaintiff. We conclude that the Defendants failed to meet
their burden to show that the statements attributed to them were privileged because
they were made when reporting a crime. See Neely, 418 S.W.3d at 62, 67-69.
On the record before us, after viewing the pleadings and evidence in the light
most favorable to the nonmovant, as we must, 3 we conclude that Cronan presented
clear and specific evidence to state a prima facie claim for defamation that is
sufficient to defeat Defendants’ motion to dismiss under the TCPA, and the
Defendants did not demonstrate that the claim was barred by a particular affirmative
defense. Therefore, we cannot say that the trial court erred in denying Defendants’
motion to dismiss under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c) (“The court may not dismiss a legal action under [the TCPA] if the party
bringing the legal action establishes by clear and specific evidence a prima facie case
for each essential element of the claim in question.”); ExxonMobil Pipeline Co., 512
S.W.3d at 899. We overrule Appellants’ second issue, and we affirm the trial court’s
order.
See Sanchez v. Striever, 614 S.W.3d 233, 242 (Tex. App.—Houston [14th
3
Dist.] 2020, no pet.); Maldonado v. Franklin, No. 04-18-00819-CV, 2019 Tex. App.
LEXIS 8747, at *7 (Tex. App.—San Antonio Sept. 30, 2019, no pet.) (mem. op.).
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AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on June 23, 2021
Opinion Delivered July 15, 2021
Before Kreger, Horton and Johnson, JJ.
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