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Cunningham v. Waymire

Court of Appeals of Texas, Fourteenth District

October 22, 2019


          On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2017-38751

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.



         When appellant Charles Lee Cunningham III became upset that his daughter, appellee Christi Lee Waymire, was seeking psychiatric therapy for her son Max[1](Cunningham's grandson), he demanded that she stop her son's therapy and threatened to send letters to the Department of Family and Protective Services ("CPS")[2] suggesting that Christi[3] and her husband, appellee Gary Michael Waymire, were using drugs and that Gary (Max's stepfather) had molested Max. When Christi did not do as Cunningham demanded, he and his sister, appellant Karan Lozano, called in reports to CPS.

         To address these actions, the Waymires filed suit against Cunningham and Lozano for alleged libel, intentional infliction of emotional distress, negligence, and conspiracy. In response, Cunningham and Lozano filed a motion to dismiss the Waymires' lawsuit under the Texas Citizens' Participation Act ("TCPA"). See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, §§ 1-2, 2011 Tex. Gen. Laws 961, 961- 64, amended by Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, §§ 1-3, 5, 2013 Tex. Gen. Laws 2499, 2499-2500 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011)).

         This is an interlocutory appeal from the trial court's order denying the motion. Cunningham and Lozano contend the trial court erred in denying the motion in three issues: (1) the TCPA applies to the lawsuit filed by the Waymires because the Waymires' claims were based on, related to, or in response to, the exercise of the right of free speech or the right to petition; (2) the Waymires cannot meet their burden under the TCPA to establish by clear and specific evidence a prima facie case on their claims; and (3) Cunningham and Lozano have proven each essential element of affirmative defenses to the Waymires' claims.

         Because we conclude the lawsuit filed by the Waymires is based on, relates to, or is in response to, the exercise of the right of free speech, we sustain Cunningham's and Lozano's first issue. We sustain in part, and overrule in part, Cunningham's and Lozano's second issue because we conclude that the Waymires met their burden with respect to some but not all of their claims. We overrule Cunningham's and Lozano's third issue because the affirmative defenses asserted by Cunningham and Lozano do not foreclose the libel claims for which the Waymires established a prima face case.[4]

         We affirm in part, and reverse in part, the order of the trial court.

         I. Background[5]

         The Waymires have three children together in a blended family, Max, Josh, and Henry.[6] Max and Henry are Christi's biological sons and Gary's stepsons. Josh is Gary's biological son and Christi's stepson. Gary acts as a father to all three boys; he picks them up from school, accompanies them to their extracurricular activities, cooks for them, and provides for them.

         Cunningham is Christi's father, Max's grandfather, and Gary's father-in-law. Lozano is Cunningham's sister, Christi's aunt, and Max's great-aunt. Before the events at issue in this lawsuit occurred, Christi and Cunningham had a close relationship. However, Cunningham never approved of Christi's decision to marry Gary.

         Cunningham had a close relationship with Max, and despite Cunningham's attitude toward Gary, Christi tried to maintain that relationship. However, Cunningham resented Gary's involvement with his grandchildren, asking Christi, "who does [Gary] think he is[, ] playing dad?" Once, when Max was grounded from the Internet because Max had created a secret email account, Cunningham grew angry after Gary asked Christi to remind Cunningham not to allow Max on the Internet. Cunningham yelled, "He is not [Max]'s dad. I am. He can't tell me what to do." One evening in 2015, after Gary cooked dinner for the family, Cunningham told Gary, "[M]ark my words; I will do whatever it takes to get those children out of [your] house."

         In January 2017, the Waymires started receiving negative reports from Max's school about his behavior. Max had been well-behaved in the past, but now he was bullying other children, and he would not stop after being reprimanded. At home, Max became aggressive towards his brothers and kicked one of them in the head. Max developed problems with impulse control and would get upset and depressed easily. Christi was deeply troubled about Max's behavior because Max's biological father suffered from severe bipolar disorder, and Christi was aware that bipolar disorder can be hereditary. After Max was suspended from school twice, the Waymires sought professional help.

         The Waymires took Max to a therapist. The therapist suggested a full psychiatric evaluation of Max. The Waymires sought to have the evaluation performed by a doctor, and the doctor recommended Max be admitted for a six-day inpatient treatment and diagnosis. During Max's six-day hospital stay, the doctor diagnosed him with disruptive mood dysregulation disorder, a childhood and adolescent ailment causing persistent irritability, angry moods, and temper outbursts. The doctor prescribed medication and recommended continued counseling with the therapist and a psychiatrist.

         Because of Max's close relationship with his grandfather, Christi informed Cunningham of Max's symptoms and the actions she was taking to help him. Initially, Cunningham seemed supportive, although he said he did not believe in psychiatric therapy, which he said was for "crazy people." Over time, however, Cunningham's attitude towards Max's therapy deteriorated. Cunningham told Christi, "anything wrong with Max is a direct result of [your] bad parenting" or "a direct result of [you] being married to a loser," and "[you] are the crazy one, not Max." Then Cunningham began to blame Max's psychiatric problems on Gary. Cunningham would repeatedly tell Christi that Gary was "brainwashing" her and that having Max committed was Gary's "first step at getting rid of" Christi's children.

         At one point, during a therapy session, Cunningham called Christi to try to persuade her to bring Max to him that same afternoon. When Christi would not agree to do so, Cunningham became so loud and angry that the therapist could hear him. The therapist suggested that Christi keep Max away from anyone who would not be supportive. Later that afternoon, Cunningham called Christi and told her that if she did not stop Max's therapy, he would use "any means necessary" to ensure Christi lost custody of the children. He said, "you would lose your whole family."

         Christi's mother is no longer married to Cunningham and lives in a separate residence. Not long after Cunningham made his threatening calls to Christi, the Waymires took their children to Christi's mother's house for the day because the children had a day off from school and the Waymires had to work. Christi's mother called her at work to say Cunningham had shown up, had taken Max to his truck, and was talking to him. Christi instructed her mother to get Max away from Cunningham and bring the children back to Christi. When Max was returned to Christi, he appeared confused and worried. Max wanted to know why his grandfather was asking him questions about Gary touching him in a way that made him feel uncomfortable or in the shower and whether the Waymires were using drugs. Max said his grandfather would not tell him what was going on but kept talking about Gary touching him in the shower. Christi believed Cunningham was suggesting to Max, or coaching Max to say, he was sexually molested by Gary.

         That same day, Cunningham initiated a text exchange, asking if he was "getting [Max] for the weekend," apologizing that he "got so mad," and instructing Christi to come by his house because he "had a lot to say" to her. Christi expressed frustration that her father had "go[ne] behind [her] back to talk to [Max] right now with everything going on." Christi emphasized that Cunningham's opinions, threats, and accusations were wrong. Christi stated that she would not talk to Cunningham until he was "150% on board with the treatment plan set in place by [Max's] parents and his doctors." Cunningham told Christi to come by his house so they could "fix this." He said, "It's not only the doctor thing that's a problem. I'm trying to help you an[d] you don't see it. Hate to see you [lose] your entire family when we all love you so much" (underlining in original). Christi refused, saying, "[t]he only help I need is support while we figure out what is going on with [Max]." Christi further stated, "I will NOT take the risk of him being exposed to anyone's insanity-which is exactly what you've been throwing at me since last Friday-insanity." Then Cunningham and Christi exchanged the following texts:

Cunningham: I think you['re] brainwashed by your husband an[d] don't know what you['re] doing.
To protect your husband over your child. Really hope CPS doesn't think your [sic] covering for him. I will send you the letters myself an[d Lozano] are sending to CPS so y'all can try to get your story straight. . . .
Christi: If you put [Gary's] son at risk by even attempting to contact his mother, he will go to war. If you call CPS[, ] I will get a restraining order.
Cunningham: Lol[.] He screw[ed] you up and that's screwing with me. He loses[.]

(underlining in original).

         Then Cunningham texted Christi copies of letters he planned to send from himself and Lozano to CPS. Both letters stated Christi had told Lozano that Max had accused Gary of doing something that was "so bad that [Gary] would lose custody of his child." Cunningham's letter said that as part of a conversation about inappropriate touching, Max asked, "Is it okay even if it's in the shower?" Both letters suggested that the Waymires admitted Max for inpatient therapy and diagnosis in the hospital to discredit Max and provide cover for Gary. According to Christi, she did not have the referenced conversation with her aunt. Gary's affidavit states he never molested anyone. The question about the shower was taken out of context; it was part of a larger conversation initiated by Max's grandmother about keeping private parts private. Moreover, although Cunningham knew that neither Christi nor Gary did drugs or consumed alcohol, both letters expressed concern over drug abuse and stated that both Christi and Gary had a history of drug abuse and Christi appeared extremely thin and unhealthy.[7]

         Christi responded, "None of you will ever see any of my children again."

         Cunningham replied, "An[d] that makes you a horrible mom. Hope th[eir] dads don't get wind of this because you won't see them either. Don't push me honey[.]"

         The following days were emotionally draining for the Waymires. Christi cried, and felt shock and alarm. Gary appeared pale and sick. The Waymires were unable to eat or sleep. Not knowing what to do, they went to the police department and filed a report. The officer they spoke to said although he did not believe Max had been abused, he could not stop Cunningham from filing his report. The Waymires hired a lawyer, and the lawyer sent letters to Cunningham and Lozano demanding they withdraw their letters and false allegations.

         Cunningham and Lozano contacted CPS. At the request of CPS, Cunningham and Lozano gave oral statements to CPS, rather than sending the prepared letters. The information Cunningham and Lozano orally provided to CPS was similar to, or the same as, the information included in their prepared letters.

         Afterwards, the Waymires learned that their sons had been interviewed by CPS at summer camp. Max called Christi crying after his interview and asked her to come pick him up from camp. Christi left work immediately. When Christi arrived at the camp, the caseworker asked to interview her. Christi agreed. The caseworker informed Christi that the Waymires were being investigated due to allegations of drug use, drug manufacturing, child abuse, and neglect. Christi felt panic. Max asked if he was going to be taken away and why his grandfather was doing this. Josh became hysterical and cried, asking, "Is she going to take us to an orphanage? Please don't let her take us away from you." Seeing the children in this state brought Christi to tears.

         As the investigation progressed, CPS interviewed both Christi and Gary and inspected their home. CPS also interviewed several other individuals regarding the Waymires' fitness as parents. CPS requested and obtained drug tests from both Christi and Gary. The drug tests did not show any drug use. At the end of the investigation, CPS concluded that, based on the available information, it was reasonable to conclude that the alleged abuse or neglect did not occur.

         The Waymires later discovered that, in addition to contacting CPS, Cunningham had emailed Gary's ex-wife's lawyer, asking the lawyer to give Gary's ex-wife his contact information and stating, "I have info that would help her get her child[, Josh] . . . . Should you decline to notify her[, ] please e-mail me back so I can look for her elsewhere." In his deposition, Cunningham admitted that, because he did not know how to find the ex-wife, he parked down the street from the Waymires' house, waited for the ex-wife to pick up her child from the Waymires' house, followed her to a grocery store, followed her inside the grocery store, and then "stopped her and introduced [him]self and told her what happened." Cunningham told her, "I want you to be aware of something because it's your child[, Josh], that my daughter had told my sister about the accusation of something happening between [Max] and Gary . . . and I think you need to be aware of it and keep your eyes open."

         Cunningham later admitted in his deposition that he had "no idea" what happened. Cunningham testified, "I don't know what happened in that home, no, I don't." In her deposition, Lozano maintained that Christi told her about an alleged bad incident but admitted that she did not ask Christi what happened, and that although Christi allegedly mentioned the bad incident in April, Lozano did not prepare her letter to CPS until June. Lozano further admitted she has "no knowledge" about whether Max was sexually abused.

         Christi and Gary-in their individual capacities and as next friends of Max and Josh-sued Cunningham and Lozano for libel, intentional infliction of emotional distress, negligence, and conspiracy. The Waymires' petition lists the allegations upon which these claims are based:

• Cunningham threatened Christi that he would take away her son (Max);
• Cunningham told Max in person that Cunningham was going to take Max from Christi and Gary;
• Cunningham drafted a letter he proposed to send to CPS which contained outrageous, false, disparaging, and hurtful allegations of sexual abuse and drug abuse against Christi and Gary and sent it to Christi and Gary in a menacing display of intent to destroy their character;
• Cunningham threatened to send the letter he had drafted to CPS if Christi and Gary continued Max's treatment for mental-health issues;
• Cunningham sent a false and disparaging report alleging criminal acts by Christi and Gary to CPS, which prompted CPS investigators to interview Max about Christi and Gary using drugs in front of him;
• Lozano drafted a letter she proposed to send to CPS that contained outrageous, false, disparaging, and hurtful allegations that Christi and Gary regularly used illegal drugs in the presence of Max at their home;
• Lozano sent the letter she had drafted to CPS, which prompted CPS investigators to interview Max about Christi and Gary using drugs in front of him;
• Cunningham and Lozano, without justification, caused CPS to investigate the Waymires' home and interview Max about drug use and sexual abuse; and
• Cunningham's and Lozano's conduct caused severe emotional distress.

         In response to the lawsuit, Cunningham and Lozano filed a motion to dismiss the lawsuit under the TCPA.[8] Cunningham and Lozano argued that the TCPA applied because the lawsuit is based on, relates to, or is in response to their exercise of the right to free speech and the right to petition. Cunningham and Lozano argued they could prove affirmative defenses to the Waymires' claims by a preponderance of the evidence. Cunningham and Lozano submitted affidavits in support of their motion. Cunningham and Lozano also sought over $50, 000 in attorney's fees and sanctions of $50, 000 each for Cunningham and Lozano. The Waymires responded to the motion, [9] arguing that (1) the TCPA did not apply, (2) they established a prima facie case of their claims (satisfying their burden under the TCPA), and (3) Cunningham and Lozano failed to carry their burden to prove their affirmative defenses. The Waymires attached affidavits, as well as deposition transcripts, in support of their response. After a hearing, the trial court denied the motion. Cunningham and Lozano appealed.

         II. Analysis

         A. TCPA framework and standard of review[10]

         The TCPA protects citizens from retaliatory lawsuits that seek to silence or intimidate them on matters of public concern. In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding); see generally TCPA §§ 27.001-.011. The statute is an anti-SLAPP law, with "SLAPP" being the acronym for "Strategic Lawsuit Against Public Participation." See Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). The purpose of the statute is to identify and summarily dispose of lawsuits designed to chill First Amendment rights. In re Lipsky, 460 S.W.3d at 589; see also TCPA ยง 27.002. The TCPA is broadly worded, and as a ...

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