### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00846
- CV

Kerrie Dietrich and Edgar Dietrich, Appellant s

v. Christopher Chambers, II and Wife, Alysha Dawn O ’ Leary, Individually and as

Next Friend of their minor child, C. O.C., Appellee s

F ROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. C2018
- 1568B, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an interlocutory appeal from the trial court ’ s denial o f a motion to dismiss brought under the T e x a s Citizen s Partic ipation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.001

– .011. 1 Ch ristopher Cham bers II and his wife Alysha Daw n O ’ Leary , individually and
as next friend of their minor child C .O.C. , sued Kerrie and Edward Dietrich for defamation ba s e d

on alleg ed statements that the Dietrichs made accusing Chambers and his son , C.O.C. , of sexual
misconduct. F or t he reasons stated below, we affirm the trial c o urt ’ s order

.

1 The Legislature amended the TCPA in 2019 , but those changes do not apply here because th is action was filed before the effective date of the amendments

. See Act of May 17, 2019, 8 6th L e g., R.S., ch. 378, §§ 11

– 12 , 2019 Tex. Sess. Law S erv. 6 84, 68 7 ( specifying that TCPA amendments apply only to action filed on or after September 1, 2019 )

. All citations to the TCPA in this opinion are to the version that applies to this dis pute.2 BACKGROUND In October 2017, Chambers ’ and O ’ Leary ’ s d augh ter , A.C., told Ke r rie Di etri c h
that A.C

. ’ s b r other , C. O.C. , had se xually abused her

. Kerrie Dietr ich a pproached Chambers and
O ’ Leary about A.C. ’ s outcry st atement , 2 but w hen th ey refused to discuss the matter with her , she told A.C. to report the al leged sexual abuse to s o me one at Morn ingside Elem e ntary

. The
school notified C hild Protective Services (CPS) and told Kerrie Dietrich that she should contact
CPS , which she did

. CPS in ves tigated the allegations and ultimately , in December 2017,
conclude d tha t the alleged abuse or neg lect did not occ u r a nd that C PS intervention was unwarranted.
The Dietrichs conten d that soon af ter CPS w as notified , Chambers began fil ming
the Di e trich s ’ daughter and other children outside Morn ings ide Elem en tary . They also alle ge that on one o ccasi on Chambers followed and f ilmed the Dietrichs ’ daughter while she walked
hom e from school

.

Chambers and O’Leary as sert that , beginning the same month that A.C. made the outcry statement , Kerrie Dietrich “ spread st ories and r umor s alleging se xua l m i s conduct and
abu se by [ C ham bers and C.O.C

. ] to neigh bors and other residents of Comal County. ” The y also allege that o n May 24, 2018 , and again on June 2 5, 2 0 1 8 , the Dietrich s distributed to their neighbors a document accusing Chamb ers and C.O.C. of se xu a l misconduct :

It ’ s come to my attention, of our children ’ s school and neighborhood parents, that our minor children are being targeted by one loc al man and his s on for sexual misconduct to all our neighborhood ch ildren. Ki ds ar e b ein g followed and v id eo t aped to and fro m Morningside Elementary School. Please Be aware and

2 An “ o utcry state ment ” is a child ’ s statement to a witness that describe s alleged abu se of the child. See Simms v. State , 12 S.W.3d 4 99 , 500 (Tex. Crim. App. 1999 )

.3

talk to your children about this horrible abuse by 2 residents Christopher Sr . and [ C.O.C. ]

— [ Chambers ’ street address]

. Thanks again! Ho meowner Associa tion

.
(E r ror s in or iginal.) T he D ietri chs deny any involvement with the creation or distribution of th is or any other neighborhood flyer.

Chambers and O’Leary sue d the Dietrichs for libel , sla nder, and def amation per

se
. Their claim s are premised on the Di etrichs ’ a lleged p ar ti ci pa ti o n in drafting and distr ibuting
the neighborhood flyer and on Kerrie Dietrich ’ s alleged oral statem ents to neigh bors and other residents of Comal County (collectiv ely, “ nei ghbors ” ) accusing Chambers and C .O.C. of se xual
mis con duct and abuse

. T h e Di e tric hs generally denied the allegations and assert ed statutory immunity and qualified pr ivi le ge as def enses t o the claims against them.
The Dietrichs also filed a mot ion seeking to di smiss the claim s agains t them under
the TCPA because the claim s are “ base d o n , relate[] to, or [are] in res ponse to ” the Dietrichs ’

“ exercise of the right of free speech [and] petition

. ” Id. § § 27.003 , .005 . Specifically, the
Di etr ichs assert ed that the claim s “ relate to an activity generally p rotected under the federal
Const itu t ion and Texas constitution

— report s to CPS and the poli ce, and for which Defendants

ar e granted both immunity to ci vil liability and a privilege under sta te law. ” In support of their
TCPA motion to di smiss, t he Dietrichs o ffered their own aff i davits

. Cha m be rs and O’Leary obj ect ed t o seve ral st atements in the Dietrichs ’ affidavits

. T he t rial court sustained objections to
the Dietric h s ’ affidavits an d thereafter d enied th e motion to dismiss on the grounds that
Chambers an d O’Leary “ established by clear and con vincing evidence a p rima facie ca se for
each essential element of the claims ” and that the Dietrichs “ have not establi shed by a preponderance of the evide nce e ach essenti al elem ent of a valid defe nse to the

. . . claims. ” This
inter locutory appeal ens u ed.4 TCPA
The TCPA establishes a three

- step process. First, the moving party mu st show by a preponderance of the evidence that the plaintiff ’ s claim “is based o n , relate s to, or i s in response to the [moving par ty ’ s] exercise of: (1) the right of fre e s p eech; (2) the right to petition; or (3) the right of association.” Id. § 27.00 5 (b)

. Next, the burden shifts to the plaintiff to

“ e stablish[ ] by clear and specific evidence a prima fac ie case f or each essential element of the claim in question.” Id

. § 2 7.005(c)

. “ Clear and specific evi dence ” means that the plaintiff “must provide enough detail to show the factual basis for its claim

. ” In re Lipsky , 460 S.W. 3d 579, 591 (Tex. 2015) (orig

. proceeding)

. If the plaintiff sa tisfies this burden, the defe nda n t may still obtain dismissal by “establish[ing] by a preponderance of the ev idence each essential element of
a valid defense” to the claim. Tex. Civ . Prac. & Rem. C o de § 27.005(d)

. When considering the
motion to di smiss, the court considers both the ple a dings and any supporting and opposing
affidavits. Id

. § 27 .006(a)

. We rev iew de novo the trial court ’ s determinations that the parties
met or faile d to meet their b urdens of pro of under sectio n 27.005

. Long Canyon Phase II & III
Homeo wners Ass ’ n v. Cas h ion , 517 S.W.3d 212, 217 (Tex. App.

— Austin 2017, no pet.)

.

ANALYSIS
The Diet richs raise thre e issue s on appeal. T h eir first issue challenge s the trial

court ’ s exclusion of Kerrie Diet rich ’ s aff idavit test imony. Th e ir second and third issues , t ak en
to g ether, ask us to analy ze the defamation claim asserte d against them under the TCPA ’ s burden

shift ing pr ocess to determine whether the district court prope rly denied the Dietrichs ’ motion to
dis m iss

. See Tex. Civ. Prac. & Rem. Code § 27.005

. Speci fi cally , b ecause the parties do not dispute tha t th e TCPA applies to the defamation claim , we are a sked to de cide whether5

Chambers and O’Leary present ed a prima f acie case f

or each essential element of the ir defamation claim and, if so, whether the Dietrichs esta b lish ed th e essen tial el em ents of a val id
defense to that claim.

Exclusion of evid ence

In her affidavit offered in support of the Dietrich s ’ motion to d ismiss, Ke rrie
Dietrich stated, “ In Oct ober 2017, when [ A.C. ] , who was nine yea r s old at the tim e, was in my
hom e , she confided in me that her older brother , [ C.O.C. ] (who was ten year s old at the time),
had been sexually abusing her. ” The trial court ex c luded t his statement as he arsay. On ap peal,
the Di etrichs argue that the trial co u rt erred in e xcludi n g thi s st atem ent as hearsay because it was

o ffered to prove the effect of the outcry statement on the Dietrichs rath er than for the truth of the

matter a sserted. See Tex. R . Evid. 801(d) (de fining “ hearsay ” as an ou t

- of

- court statem e nt by the
decla ran t o f

fered “ to p rove the truth of the matter asserted in the statement ” ).
We review a trial court ’ s exclusion of evidence for an abuse of discretion

. Gunn v. McCoy , 554 S.W.3d 645, 666 (Tex. 20 18)

. Bu t even if we assume, for purposes of this
decisi on , t hat the statement is admissible under the Texas Rules of Evid ence and that the trial court erred in not admitting it, the Di etrichs must show that the error was ha r mful. See id. The

erron eous e xc lusion of evidence is harmful if it “probably caused the rendi t ion of a n improper judgment. ” Tex . R. App. P. 44.1 ; see Gunn , 55 4 S.W.3d at 66 8

. Exclusion is likely harmless if
the evidence was cumulative or if the rest o f the evid ence was s o one
- sided th at the error likely made no difference in the judgmen t

. Gunn , 554 S.W.3d at 668 ; see Mentis v. Barnard , 870
S.W.2d 14, 16 (T ex. 1994) ( “ An error in the exclusion of evidence requires reversal if it is both

co ntrolling on a material issue and not c umulative. ” ).6 Here, t he trial court ’ s e x clusion o f Kerrie D iet rich ’ s statement was harml ess because Chambers and O’ Leary d o not dispute, and in fact ackno wledge, that A.C. made t he

outcr y statement to Kerr ie Dietrich

. Specifically, in the affi davit s attached to their re sponse to
the Dietrichs ’ T CPA motio n to dismiss , both Chambers and O ’ Lear y state :

O ur daughter [A.C.]

. . . reportedly made a co mment when she was only about 8 years of age t hat her brother

. . . would rape her every night, thinking th at “ rape ” meant that you force someone to do somethin g they don ’ t w ant to do. This all aro se over our daughter ’ s misunderstanding of what th e word “ rape ” means.

O ’ Leary als o states in her affi davit , “ [The Dietric h ’ s daughter] and one other student rep orted
what [A.C.] had said to the school

. ” Finally, Christine Per d ue , a n e ighbor of Kerrie Di etrich,
testified in an other affidavit that “ Ms. Dietrich indicated to me that [A.C.] had told Ms. Dietrich
that she had be en sexually assaulted by her father and brother. ” This evidence es tablishes the
same inform ation as the e xcluded ev idence. Accordin gly, we hold that even if the tri al court
erred in exclud ing Kerrie Dietrich ’ s testimony, such er ror did not cause the rend ition of a n improper ju dgment.

We ove rrule the Die trich s ’ first issue a n d turn to the Diet richs ’ challen ge to t h e trial co urt ’ s den ial of their TCPA motion to di smiss.

Prima facie case

In their second issue, t he Dietrichs a ssert that the trial cour t e rred in denying t he ir
motion to dismiss the defamation claim asserted agains t them because Chambers and O’ Leary
fa i led t o e stablish a pr im a facie case for each essential element of that c laim

— the second step in a TCPA analysis

. See Tex. Civ. Prac. & Rem. Code § 27.005(c)

. The elements of a d ef amation
claim are: (1) publication of a false statement of fact to a t hird party, (2) that was defamatory7

co ncerning the plaintiff, (3) with the requ i site degree of fault, and (4) damage s, un less the
statement is de fam atory per s e
. Lipsky , 460 S.W.3d at 593

. P ublication of a false statement of fact to a third party
A statem e nt is “published” when it is communicated orally or in writing to a third person who is c apable of understanding its defamatory meaning in such a way that the person did
unde r sta nd its defama tory meaning. Exx on Mobil Corp. v. Rincones , 520 S.W.3 d 572, 57 9 (Tex. 2017)

. A publication is false if it “ is not substantially true. ” Neely v. Wilson , 418 S .W.3d 52, 63 (Tex. 2013)

. A pub lication is not substantially true if, taken as a whole, it is m o re damaging to the plaintiff ’ s reputation than a trut hful publ i cation would have been

. Id

.

Chambers and O’Leary’ s live pet ition alleges , with respect to this elemen t of th eir defamation claim, that the Dietrichs , both orally and b y di st ributing the n ei ghborhood flyer , spread to their neighbo rs fals e sto ries and ru m ors that Chambers and C.O.C. had engaged in
sexual misconduct and abuse :

• “ [ Kerrie Dietr ich ] distr ibute d or caused to be dis tributed , notice s in writing to residents of Com al County, Texas, a ccusing [Chambers] and [ C.O.C. ] of sexual miscon duct and abuse. ”

• “ Def endants have verbally [sic] spread stories and r umors alleging sexual misconduct and abu se by sa id Plaintiffs to neighbors and other residents of Comal County, Te xas and have encouraged , a ided and abetted in said activities. ”

In supp ort of their res p onse to the Dietrich s ’ motion to dismiss, Chambers and O’Leary attached
cop ies of CPS ’s investigation report and copies of the neighborho od flyer that the Dietrich s allegedly circ ulated to neighbo r s
. Chambers and O’Le ary also provided the ir o wn affidavit s and
the aff idavit of Chr istine Perdue

. According to O ’ Leary ’ s affidavit, the CPS inve stigat ion in to
the sexual

- misconduct and ab use allegation s “ resulted in a finding of innoce nce of all our8

family ” ; that “ Kerrie D ietrich was spreading s e xua l stories an d rumors, all false and without foundation, in the neighborhood about [ Cham ber s a nd C.O.C. ] , and in so many words that they

were sexu a l predators ” ; Ke rrie Dietrich admitted to “ our neighbor , Chr istine Perdue , that she ”
distributed the neigh bor h ood flyer to neighbors ; and Kerrie Dietrich made “ slan derou s

s tatements abou t our son [C.O. C.] to neig hbor Ch ristine Perdue and to other children in the

ne i ghborhood . . . that our so n [C.O.C.] was a rapist

. ” Chambers testi fied in his affidavit t hat h e

“ h ad not commi t ted any sexu al misconduct or abuse, horrible or other wi se, and neither has my
wife [ O ’ Leary ] or ou r son [C.O.C.] ” ; and Kerrie Dietrich mad e “slan derou s statements abou t ou r

son [C.O.C.] to neighbor Ch ristine Perdue and to other children in the neighbor hoo d . . . that our

so n [C.O .C.] was a rapist

. ” Final ly, Chr istine Perdue test i fied in her affidavit that Kerri Dietrich
said “ b ad thi ngs about the Chambers fa m ily , ” including statements t h at “ Mr. Christopher
Chambers and his son [C.O .C.]

. . . we r e sexually m olesting their daughter [A .C.] ” ; that Kerrie
Dietrich “ c i rculat [ed] the flyer ” ; that “ Kerrie Dietric h was going to peo ple ’ s homes in the neighborh ood and po sting this information ab o ut sexual molestation either by depositing them in
the ma il b ox or attach i ng them to people ’ s doors in the neighborhood ” ; and that Kerrie Dietrich
later “ apol ogized to some o f the neighbors about what she had been saying about [ Chambers and
C.O.C. ]

. ”
The Dietrichs do not challeng e the falsity of all eged state men ts accusing
C h ambers and C.O.C. of bei ng rap ists or sexual pr ed ator s . Instead, they focus on the
truthful ness of the ir alleged communications to CPS and other s about the outcry statement

— i.e.,

t hat those communications we re not false because A.C. did , in fact, make th e out cry statemen t. But, as explained above, the defamation claims against the D ietric hs are not based on their9

communications about the out cry statement or the f act that it was made , but on their all eg ed
statements to others that Chambers an d C.O.C. were s exual predator s and rapists.

The Di etrichs also argue that Cham bers and O ’ Leary did not meet their TCPA
burden because the evidence does not establish that anyone “ actually wit nessed ” the distrib ution
of the letter. The clear

- and

- speci fi c standard can n ot be met , the Dietrich s argue, un less the re is evidence of someone witnessing distribution of the flyer

. We take this to be a challenge to the

“ publication ” aspect of th is element

. However, “ p ubl ication” si mply requires communication of

a defamatory s t a tement to a th ird person. See Exxon Mobil , 520 S.W.3d at 579 ; Publish , Black ’ s
Law Dictiona ry ( 10 th ed. 2014) ( “ To communica t e ( defamatory words) to someone other than the person defamed. ” ). A nd here, a s set out above, Perdue testified tha t Kerrie Dietr i ch made

statem ents to Perdue and in the presence of o ther neighbors that Chambers and C .O.C. w ere

se xually abusing A.C

. . She , Chambe rs, and O ’ Leary also testified that the Dietrich s distributed
to the ir neigh bors the fly ers accusing Chamber s and C.O.C. o f se xual miscondu ct.

We hold that , with respect to the publication

- of

- a
- fal se
- statement element of their
defamation claim , the evidence satisfies Chambers ’ s and O ’ Leary ’ s evidentiary burden u nder t he
TCPA

. See Tex. Civ. Prac. & Rem. Code § 27.005(c)

.

D efamatory concerning the Cham b ers f amily Under Texas law, a statement is defamatory if it “ te nds to injure a living person ’ s reputation and thereb y expose the person to public hatred, conte mpt or rid icul e, or financial injury or to impe ach any person ’ s honesty, integrity, vi rtue, or reputa tion

. ” Id. § 73.001 (elements of li bel ) ; see Bentley v. B u nton , 94 S.W.3d 561, 587 (T e x. 2002) (explaining that a defamatory statement is “ injuri ous to rep utation ” )

. Whether a statement is defamatory is a10

question of law for the co urt. Musser v. Smith Protective Serv s ., Inc. , 723 S.W.2d 653, 6 54

– 55 (Tex. 1987)

. For t his determination, we c onstrue the statement a s a whole in light of surrounding
cir cumstances , based on how a reasonable person would pe rceive the en tir e st atement. Lipsky , 460 S.W.3d at 594

.

O ’ Leary testi fied in her affidavit th at “ both before and after CPS cleared the
Chambers family, Kerri e Dietrich was spreading sexual storie s a nd rumors, all false and without foundation, in the n eighborhood abou t my husband, [Chambers] , and s o n , [ C.O.C. ] , . . . and in so many words that t hey were sexual predators. ” B oth O ’ Leary and Chambers testifi ed that “ Kerrie
Dietrich ma[de] slanderous s tatements about our son [C .O.C.] to neighbor Chr istine P erdue and
to othe r childr en in the neighborhoo d on or about November 2017 and that our son [C .O.C.] was a rapist

. ” Likewise, Pe rdue testified in her a ffida vit that Kerrie Dietrich “ made statements to me
to the effect that Mr. Christopher Chambers and his son [ C.O.C. ] , wer e sexually molest ing the i r daughter [A.C .]

. ” Finally, t he neighbo rhood flyer that the Dietrich s allegedly d istri buted accused
Chambers and C.O.C. of targeting minor children “ for sexual misconduct. ”

The statements a scribed to the Dietri ch s accuse C hambe r s and C.O.C. of sexual
misconduct , abuse , and rape of a minor , and a l s o of targeting other mi nors for sexual misconduct
and abuse . Accusi ng som e one of a crime or of engaging in serious sexu al miscon duct is defamatory. Id. at 59 6 ( “ Accus ing s omeone of a c rime, of having a foul o r loathsome disease, or of eng aging in serious sexua l misconduct are examples of defamation per se. ” ). Therefore, Chambers and O’Leary’s evidence satisfies their burden with respect to this element of their
defamation claim.11

R equisite d e gree of fault
B ec ause Chambers and O ’ Leary are private indivi duals, they must show t h at the
d efamatory statements were n egligently published. See id. at 593

. For the purposes of
defamat ion liabili t y, negligen c e is established upon a s howing the publis h er knew or should h ave known that the defamatory statement was false. Neely , 418 S.W.3d at 72

. Texas courts have
also de scribed this as the failure to investigate the truth or falsity of a statement before publ i cation, and the failure t o act as a reason a bly prudent person
. See , e.g. , Day v. Federation of
S tate Med. Bds. of the U

. S. , Inc. , 579 S.W.3d 810, 822 (Tex. App.

— San Antonio 2019 , pet. denied)

. As noted, Chambers and O ’ Lea ry provided the trial court with the December 26,
2017 CPS investi gation report , which conclud ed that A.C. had not be en sexual ly ab use d , physic al ly abuse d , o r neg l ect ed , a nd that i ntervention by CP S was unw arranted. Chambers and
O ’ Leary both testified in their re spective affidavit s that CPS ’ s report was furni shed to the
Dietrichs , with O ’ Leary further explaining tha t the Dietr ichs “ we re fully i nformed that no crime or improper or i nappropriate se xu a l activi ty had taken place involving any member of th e Chambers family. ” O ’ Leary also te stified that Kerrie Diet rich made the oral def amatory

st ate ments about Cha mbers and C.O.C. both befor e an d after CPS ’ s investigation was comp lete
and that Kerrie Diet r ich dis tributed the neighborhood fly er accusing Chambers and C.O.C. of
sexual miscond uct in May an d Ju ne of 2018 , months after the CPS in ves tiga tion concluded

. Finally, Chambers and O ’ Le ar y both testified that Chambers and C.O.C. did not se xually abuse
A. C

. . T he Dietrichs d o not challenge CPS ’ s conclusions or the assertions that the
Dietrichs were aware of CPS ’s co nclusions

. Nor d o they argue that the alleged statem ents that12

Ch ambers and C.O.C. are rap ists and sexual pr ed ator s are t rue s tatements . Inst e ad, they argue th at they could not have been negligent as to falsity when they reported the outcr y statement
beca use A.C. did, in fact, ma ke the out cry stateme nt a nd because Texas law makes it obligatory to report out cry stateme nts to an appropriate agenc y , including CPS

. See Tex. Fam. C ode § § 261.101

– . 10 2

. But again, the defamation claims against them are premised on the alleged
oral and written statements made t o n eighbors , not on Kerrie Dietrich ’ s report of the out cry
statemen t

. We hold t hat , with r e spect to the requis ite degree of fault, the evi dence satisfies
Chambers ’ s and O ’ Lear y ’ s evidentiary bu rde n under the TCPA. See Tex. Civ. Prac. & Rem.
Code § 27.00 5(c)

.
Damages
T he Dietrichs do not challenge the damages element

. But even if they had,

s tatements accusing s omeone of a crime is def amation per se for which evidence of damages is not required. See Lipsky , 460 S.W.3d at 59 5

– 9 6

.

In sum, we hold that Chambers and O ’ Leary have establishe d by clear and specific evi dence a p ri ma facie case f o r each essential element of their def amation claim. See
Tex. Civ. Prac. & Rem. Code § 27.005(c) ; Lipsky , 460 S.W.3d at 591 ( “ In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, a nd what
was said , the defamatory nature of the statements, and how they damaged the plaintiff should be
sufficient to resist a TCPA motion to dismiss. ” )

. Accor dingly, we overrule th e Dietrich s ’ second
issue.13

Dietrichs ’ affirm ative defense s

In their f in al issue (and the third step of our TCPA analysis) , the Dietrichs assert
tha t the y were entit led to dismissal u nder the TCPA because they established th e affirmative
defense s of statu tory immunity, qualified privilege , and truth or substantial truth. Se e T ex. Civ.
Prac . & Rem. Code § 27.0 05(d) ( requiring court to “ dismiss legal action . . . if m oving party
establ ishe s by a preponderance of the evidence each essential element of a val id def ense to the

nonmovant ’ s claim ” ).
Statutory i mmunity The Family Co de requires that o utcry statements be r eport ed to an appropriate authority. See Tex. Fam. Co de § 261.101

– .102. Further, t he Family Code grants immunit y to any person who, in good f aith, ma kes such a report :
A person acting in good faith who reports o r assists in the in v estigation of a report of alleged child abuse or neglect or who testifies or otherwise p articipates in a judicial proceeding arising from a report, petition, or i nvesti gation of alleg ed child abuse or neglect is immune from civil or cr i minal liability tha t might otherwise be incurred or imposed.

Id . § 261.106 (a )

. On appeal, the Dietrichs as se r t that they e stablished their entitlement to statutory im munity under sect ion 261.106(a ) and, therefore, the tr ial court should have dismissed
the claim s “re lating to [ the Dietrich s ’ ] report of child abuse to the a uthori tie s
. ” But as explained above, t he claim s against them are not premised on the report of the outcry stat ement to CPS or a judicial proceeding aris ing from such a report

. Thus, e ven assuming they ha v e met all of its require ments , section 261.10 6 ’ s grant of immunity would not prot ect the Dietrichs here because this litigation concerns alleged statements mad e to neighbors , not statements made to assist in an14

investigation of alleged child abuse. See I n re L.M.M. , No. 03

- 04

- 00452

- CV , 2005 WL
2094758 , at *18 (Tex. App.

— Austin Aug. 31, 2005, no pet.) (mem. op.) ( “ [T]he legislature
intended to prote ct reporte rs of child abuse from liability f or the a ct of reporting the abuse itself , not from civil o r crimi n al liability generally

. ” (citing State v. Harrod , 81 S.W.3d 904, 908 (Tex. App.

— Dallas 2002, pet. ref ’d ) )

.
Qual i fied privilege Qual i fied privile ge is a n affi rmative defen se to a defamation claim. S ee , e.g. , Burbage v. Burbage , 447 S.W.3d 249, 254 (Te x . 2014) . To be entitled to qualif ied privil ege, the
defendant ’ s stat ement must : (1) be made with out actual malice (i.e., in good faith), (2 ) concern a subj ect matter that is of sufficient inte rest to the author or is in reference to a duty the aut hor

owe s , and (3) be communicated to anoth er party having a corresponding interest or duty. S ee Cain v. Hearst Corp. , 878 S.W.2d 577, 582 (T ex. 199 4)

. A statement is made without a ct ual
malice if it is made without knowledge of its falsity a nd without re ckless d isregard for its truth.
See Randall ’ s Food M

k ts

. , Inc. v. John son , 891 S.W.2d 640, 646 (T ex. 1995) ; see also Lipsky , 460 S.W.3d at 593 ( d iscussing actual m alice in conte xt of defamation elem ents)

. On app eal, the
Dietrichs assert that they esta b lished , by a pr eponderance of the evidence, the essential elements
of qualified privilege with re spect to th eir alleged communications to their neig hbors

.

The Dietrichs assert ed in their live pleadings that they a re entitled to the
affirmative def

ense of qualified privilege “ because a commun ication o f an all eged wrong ful act made to an off

icial authorized to protect the public from the act is protected by a qualified privi lege. ” (E mpha sis added.) The Dietrichs di d not invoke this defense in c onnection w ith the
al l eged oral and written statements to neighbors tha t form the basis of the claims against the m.15

Likewise , the Dietrichs ’ m ot ion to dismiss raises this defense only with res pect to their

“ commun ication of an alleged wrongful a ct made to an officia l authorize d to protect the public

. ” And on appeal, the Dietr ichs e mphasi ze evidence show ing that A.C. made an out cry stateme nt to
them that they believe d to be tr ue
.

But even if we assume that the D i etrichs proper ly raised qualified privi le ge as a defense t o the ir alleged communications to neigh bors , the Dietrich s have not established by a preponderance of the evid ence the without

- actual

- malice ele ment of the qua lified

- immunit y defense for reasons sim ilar to those in our analysis of t he requ isite

- de gree
- of

- fault el e ment of a
defamation claim. C hambers and O ’ Leary alleged , and supported with evidence , t hat the
Dietrichs made defamatory statements about Cha mbers and C.O.C. both before and after learning of CPS ’ s conc lu sion that A.C. had not be en ab u sed

. Th e Dietrich s did not den y th ese assertion s or contra dict the supportin g evidence , and t hey did not provide any evidence , or even allege , that they were not awar e of the res ult s of CPS ’ s investigation when they allege d ly told neighbors that Cha mber s and C.O.C. had eng a ged in sexual misconduct

. F urther , the Dietrichs
do not conten d tha t the allege d statement s to their neighbors are true. Instead , t hey assert only
that A.C. ma de an out cry stateme nt to them that they be lieve d to be tr ue
. As such , th e Dietrichs
did not e stablish by a preponderance of the evid ence that the y made the alleged post

- C PS investigation statement s

— i.e., the statements to neighb ors that Chambers and C.O. C. a re sexu al predator s

— without knowledge o f their falsity and without rec kless disregard for t he truth. See
Tex. Civ. Prac. & Rem. Code § 27.005(d) (burden for establishing defenses); Randall ’ s , 891
S.W. 2d at 646 (a ctual

- malice standard)

.

The Dietrichs also con tend they establis hed the without

- actual

- malice el e ment
b ecau se they state in thei r a f fi davits , and Chambers and O ’ Leary do not dispute, that Chamber s16

film ed child ren at Morningsid e E lementary

. B ut evidence that Ch ambers filmed children at an elementary school does not est ablish that Chambers and C.O.C. are sexual predators or that the y

s e x ually abused A.C.

. B y extension and in light of the TCPA evid ence establish ing whe n the
Dietrichs knew the results of CPS ’ s investigation , th is evidence does not s up port th e without

a ct ual

- malice element of the true defense

— i.e., that the Dietrich s m ade st atements accusing
Chambers and C.O.C. of sexual misconduct without knowledge of fal sit y and without reckle ss disregard for the truth

.

I n sum, the Dietrichs did not m e et their burden of establishing by a preponderance
of the evi dence the without

- act ual

- malice element of their qualified

- privi lege defense. Accordingly, the trial court did not err i n denying their motion to dismiss as to this defense

. See
Tex. Civ. Prac. & Rem. Code § 27.005(d )

.

Truth
Truth is a def

ense to a d efamation claim. Neely , 4 18 S.W .3d at 62 (citing Tex. Civ. Prac. & Rem. Code § 73.005 )

. The Dietrichs contend on appeal tha t it was error for the trial court to deny their motion to dismiss because they established by a pr eponderan ce of the
evidence the essential elements of th e d efen se of truth. T he Dietrichs , however, did not invoke
this defense in their a nswer and , more imp ortantly, did not raise it as a ground for granting their
motion to dismiss . As such, the t rial court coul d not have rejected it in denying their motion t o dismi ss
. Therefore , t his issue is not properly within the limited scope of this interlocutory appeal. See Comb ined L aw En f orcement Ass ’ n of Tex. v. She ffield , No. 03

- 13

- 00105

- C V, 2014
WL 41167 2, at *4 (Tex . App.

— Austin Jan. 31, 2014, pet. denied) (mem. op.) (citing Tex. R. App. P. 3 3.1(a)(1) )

. And e ven if they had raised the truth defense as a ground for dismissal, the17

Dietrichs do not contend that their alleged statements about Chambers and C.O.C. were true, and
the evidence i n the record do es not est a blish by a prepo nderance of th e evidence that Chambers
and C.O.C. engaged in sexual misconduct.

We o verrule th e Dietrich s ’ third iss ue.

Conclusion
H aving overruled t he D iet richs ’ issues, we affirm the trial court ’ s judgment.

___________________ _______________________ J eff Rose, Chief Justice

Before Chi ef Justice Rose, Justice s Kelly and Smith
Af firmed
Fil ed: October 28, 2020