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


                                         10
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.




                                          22
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


                                         23
“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.




                                          24
      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

                                        25
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.




                                         26
      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.




                                         27
      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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