Appeal from the 234th District Court Harris County, Texas
Trial Court Cause No. 2017-38751
consists of Chief Justice Frost and Justices Spain and
CHARLES A. SPAIN JUSTICE
appellant Charles Lee Cunningham III became upset that his
daughter, appellee Christi Lee Waymire, was seeking
psychiatric therapy for her son Max(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") suggesting that
Christi 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.
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. §§
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.
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.
affirm in part, and reverse in part, the order of the trial
Waymires have three children together in a blended family,
Max, Josh, and Henry. 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.
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.
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]
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.
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.
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.
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
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.
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).
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
responded, "None of you will ever see any of my children
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[.]"
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.
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.
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.
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.
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."
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.
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.
response to the lawsuit, Cunningham and Lozano filed a motion
to dismiss the lawsuit under the TCPA. 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,  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.
TCPA framework and standard of review
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 § 27.002. The TCPA is
broadly worded, and as a ...