Montano v. Cronan

ANTHONY MONTANO, CHRISTINE MONTANO, AND MICHAEL ROSMAN, Appellants v. KYLE CRONAN, Appellee

No. 09-20-00232-CV

Court of Appeals of Texas, Ninth District, Beaumont

July 15, 2021

Submitted on June 23, 2021

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 20-06-06390-CV

Before Kreger, Horton and Johnson, JJ.

MEMORANDUM OPINION

LEANNE JOHNSON JUSTICE

In this accelerated interlocutory appeal, Appellants Anthony Montano Christine Montano, and Michael Rosman ("Defendants" or "Appellants") appeal the trial court's order denying their motion to dismiss pursuant to the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. &Rem. Code Ann. §§ 27.00127.011, 51.014(a)(12) (authorizing interlocutory appeal of an order denying motion to dismiss filed under TCPA section 27.003). The TCPA applies to "a legal action [that] is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party's communication or conduct described by Section 27.010(b)[.]" Tex. Civ. Prac &Rem. Code Ann. § 27.003(a).

We affirm.

Background

Appellee Kyle Cronan ("Plaintiff" or "Appellee") filed an original petition against the Defendants for defamation. Cronan alleged that on May 7, 2020, Michael Rosman and Anthony Montano sent Cronan "harassing and defamatory statements" to Cronan's cell phone alleging that Cronan "was sneaking about in the woods in order to take pictures of underage girls." In his petition Cronan also alleged that on May 13, 2020, Cronan was in the parking lot of Northshore Park when Anthony and Christine Montano pulled up in their vehicle and "openly[]" accused Cronan of being a "pervert" and a "pedophile[, ]" in front of a Woodlands Township employee. Cronan alleged that these statements were defamatory per se, they caused Cronan's reputation to be severely injured, and that Cronan suffered extreme mental anguish, public humiliation, and embarrassment.

The Defendants subsequently filed a motion to dismiss pursuant to the TCPA. Therein, the Defendants argued that the lawsuit is based on Defendants' exercise of the right of free speech and the alleged defamatory statements on their face are about matters of public concern-"the privacy interests of underage girls Plaintiff was photographing and the criminal nature of Plaintiff's activity[.]"

In his response to the Defendants' motion to dismiss, Cronan argued that the court should deny the motion because there is clear and specific evidence of each element of Cronan's claim for defamation, and damages are presumed because Defendants' statements about Cronan that he is "a pervert, a pedophile, and a sexual deviant" are defamatory per se. In an affidavit attached to his response, Cronan stated that he and the Defendants are all involved in competitive rowing and are affiliated with rival clubs-Parati Competitive Rowing ("Parati") and the Rowing Club of the Woodlands. Cronan further alleged that the Defendants "hold significant resentment towards [Cronan] stemming from the injury to [his] daughter and ensuing fallout, the suit concerning those injuries, and [Cronan's] participation in the SafeSport complaints to U.S. Rowing and U.S. Rowing's subsequent investigation." Cronan also stated in his affidavit that Parati had violated numerous regulations relating to COVID-19 and general student safety.

Cronan stated in his affidavit that, on May 13, 2020, he arrived at the parking lot near the rowing boathouses at Northshore Park shortly after an incident "in which Defendants, along with a number of kids and adults involved with Parati, had assaulted and attacked Ken Torrance." According to Cronan, while Cronan was talking with an employee of The Woodlands Township, Trohn Trabona, whom Cronan understood was there to investigate the incident involving Defendants, Parati and Torrance, Michael Rosman pointed at Cronan and yelled across the parking lot "There is the other pervert!" and multiple families, adults, and children were present. Cronan stated in his affidavit that Trabona heard what Rosman yelled at him and said to Cronan, "Did he just call you a pervert?" Cronan further stated in his affidavit that the Montanos then stopped their vehicle near where Cronan was sitting with Trabona, they rolled down the window of their vehicle, and they shouted "That guy is a pedophile! He is a pervert! Watch your kids-h[e] is a pervert! [] Taking pictures of girls, you pedophile!" According to Cronan, Trabona commented on these accusations and "a multitude of families and other adults and children [were] around and well within earshot." According to Cronan, students in the area recorded the incident and posted it to social media, which caused Cronan and his daughter shame and embarrassment. Cronan further stated in his affidavit that the Defendants knew that Cronan was not a pervert or a pedophile, that their purpose was to falsely accuse Cronan of being a sexual deviant to damage his reputation, and that their actions were consistent with other acts Defendants took to "get back" at him.

Cronan denied being a pervert or pedophile or having unnatural sexual attractions to minors. Cronan alleged that Defendants' accusations were "simply meant to discredit Plaintiff and to retaliate against him for reporting SafeSport violations to U.S. Rowing and for suing Defendants and Parati Competitive Rowing for the injuries they inflicted on Plaintiff's minor daughter." Cronan argued that he had provided sufficient facts to state a prima facie claim for defamation because he had alleged that the Defendants made false defamatory statements (calling him a pervert and pedophile), the statements were made publicly where others could hear them, and no proof of damages is required because the statements were defamatory per se. Even so, Cronan alleged that he has lost clients in his work as a financial advisor because of the statements, and that his reputation has been damaged. Cronan further asserted that he has lost sleep due to embarrassment and shame, and the incident has strained his relationship with his daughter.

At a hearing on the motion to dismiss, the Defendants argued that Cronan "was suspended from the Parati Rowing Club for three months and started photographing the minors while working out in order to create some evidence of violations of the club rules and U.S. Rowing rules." Defendants argued that there was no evidence that the alleged defamatory statements were made except for Cronan's own testimony. The Defendants also argued that Cronan's denial that he is a pedophile is inadequate and an expert opinion would be required, that actual malice is required to prove defamation per se and that "qualified privilege [] applies when they're reporting a criminal activity[]" because Cronan's affidavit alleged that the Township employee was investigating another incident at the time.

Cronan argued that his affidavit specifically identified the statements made, by whom, where they were made, and that they were made publicly. Cronan also argued the statements were defamatory per se because they were allegations of serious sexual misconduct, that no privilege for reporting a crime applies, even if Trabona was there investigating another incident, because "[t]his is people yelling across parking lots, yelling out of cars in front of groups of children."

The trial court signed an order denying Defendants' motion to dismiss under the TCPA. Defendants timely filed their notice of appeal.

Issues

In their first issue, Appellants argue that their speech was protected under the TCPA because the statements attributed to them constitute communications about a matter of public concern because of the privacy interests of the underage girls Cronan was photographing and the perceived criminal nature of Cronan's activity.

In Appellants' second issue, Appellants argue that Cronan did not present clear and specific evidence of the elements of a defamation claim against Appellants. According to Appellants, Cronan failed to present clear and specific evidence of publication, he did not present an affidavit from anyone who actually heard the alleged defamatory statements, the text messages on which Cronan relies were not sent to a third party, Cronan presented no evidence that the incidents were published to social media, and Cronan relies solely on his own affidavit. Appellants also argue that Cronan is unable to establish the statements about him are false because "they are neither factual nor supported by any expert testimony." Appellants further argue that Cronan did not present clear and specific evidence of actual malice, which is required because a qualified privilege applies to reporting criminal activity. Appellants argue that the statements attributed to them were made in connection with a criminal investigation because Cronan's affidavit alleged that the incident at Northshore Park occurred when Trabona was there to investigate the altercation involving Defendants, Parati and Torrance. Appellants also argue that, even if actual malice is not required, Cronan's allegations are deficient because he did not present evidence that the Appellants knew their alleged statements were false.

Analysis

A three-step burden shifting mechanism is triggered by the filing of a motion to dismiss under the TCPA. In re Lipsky, 460 S.W.3d 579, 586-87 (Tex. 2015). The movant bears the initial burden to demonstrate that the legal action is based on or is in response to the movant's exercise of the right of free speech, the right of association, or the right to petition. Tex. Civ. Prac. &Rem. Code Ann. § 27.005(b). If the movant meets his initial burden, the burden shifts to...