Jesus Miranda v. Stephen Byles ( 2012 )

Opinion issued October 25, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-01022-CV
———————————
JESUS MIRANDA, Appellant
V.
STEPHEN BYLES, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2008-73708
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
2
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
3
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.
4
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
5
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.
6
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.
7
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:
8
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.
1
In the findings of fact and conclusions of law, the trial court determined that Jesus
was liable to Stephen for intentional infliction of emotional distress based on
separate facts. It also determined that an award of $25,000 in actual damages
would compensate Stephen for this claim. This award was not included in the
judgment, however, and no party complains of this on appeal.
9
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
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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 (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).
11
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
2
No reference to immunity is made anywhere in Miranda’s brief on the merits.
12
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
13
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.
14
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
15
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
16
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
17
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.
18
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
(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
19
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 (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, 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 (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–
20
61, 105 S. Ct. 2939, 2945–46 (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.
21
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.
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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
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“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.
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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
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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.
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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.
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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.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Justice Keyes, dissenting.
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