Doe v. Cruz

• Docket Number: 04-21-00582-CV
• Decision Date: 29 November 2023
• Parties: John DOE, Appellant v. Juan J. CRUZ, Appellee
• Court: Texas Court of Appeals

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John DOE, Appellant v. Juan J. CRUZ, Appellee

No. 04-21-00582-CV

Court of Appeals of Texas, Fourth District, San Antonio

November 29, 2023

From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2021-CVF-001656-D4 Honorable Susan D. Reed, Judge Presiding

Opinion on Motion for Rehearing

Sitting: Luz Elena D. Chapa, Justice, Beth Watkins, Justice Lori I. Valenzuela, Justice.

OPINION

Lori I. Valenzuela, Justice

Appellant John Doe^[1] appeals from the trial court's order denying his motion to dismiss appellee Juan J. Cruz's counterclaims pursuant to the Texas Citizens Participation Act ("TCPA"). In the following analysis, we consider whether (1) Cruz's counterclaims are subject to a TCPA motion to dismiss, (2) Cruz established by clear and specific evidence a prima facie case for each essential element of his counterclaims, and (3) Doe established an affirmative defense or other grounds on which he is entitled to judgment as a matter of law, with respect to Cruz's counterclaims. On August 9 2023, we issued an opinion and judgment affirming the trial court's judgment in part, reversing in part, rendering judgment dismissing all but Cruz's defamation counterclaim, and remanding for further proceedings. Doe and Cruz subsequently filed motions for rehearing. The court, on its own motion, withdraws its August 9, 2023 opinion and judgment and substitutes this opinion and judgment in their stead to address the quasi-judicial privilege. Consistent with our August 9, 2023 opinion and judgment, we affirm the trial court's order in part, reverse in part, render judgment dismissing all but Cruz's defamation counterclaim, and remand for further proceedings to the trial court for further proceedings consistent with this opinion.

BACKGROUND

A. Doe's Original Petition

On August 30, 2021, Doe filed an original petition against Cruz, whose law firm represents United Independent School District ("UISD") in Laredo. The petition's "Case Summary" states: "Defendant Juan J. Cruz is a homosexual pedophile that assaulted John Doe, a minor who was his employee and a student at one of the school districts where he serves as general counsel." The petition continues with a "Notice to School Districts Employing Juan J. Cruz," which states:

Defendant Juan J. Cruz holds himself out [as] a school law expert dealing with minor children. Any school district that has Juan J. Cruz employed as general counsel is hereby on notice of his deviant proclivity to have homosexual intercourse and sexually assault minor children and should take appropriate actions to protect their students from Defendant Juan J. Cruz.

Doe alleged Cruz began "homosexual advances," including "licking his lips while staring provocatively" at Doe and giving "offensive touch[es] including massages" when Doe was sixteen years old. Doe further alleged Cruz "lured" Doe to work for him. According to Doe's original petition:

Cruz would furnish alcohol and Xanax to minor John Doe to make it easier for Defendant Cruz to sexually assault John Doe. Defendant Cruz would require John Doe to stay at his apartment in San Antonio and at his home . . . in Laredo, Texas so he could conveniently sexually assault him . . . .

Doe stated a cause of action, under the heading "Defendant Juan J. Cruz's Homosexual Sexual Assault and Battery of a Minor Child," in which he alleged as follows:

19. John Doe was 16 years old when Defendant Cruz began homosexually assaulting him. At the time the cause of action accrued, the age of consent was seventeen (17) in the State of Texas. Defendant Juan J. Cruz used his position as a school attorney and the trust he gained from John Doe to commit acts of sexual assault and sexual battery against John Doe. . . .

20. John Doe's status as a minor, coupled with Defendant Juan J. Cruz's position as his boss, lawyer and authority figure, allowed Defendant Cruz to exercise control and influence over John Doe. Using the power, authority and trust of his position, Defendant Juan J. Cruz homosexually assaulted and molested John Doe on countless occasions, for money. . . .

Doe also asserted causes of action for breach of fiduciary duty and intentional infliction of emotional distress.

B. Email to UISD Board Members and Its Superintendent

Doe's attorney emailed a copy of Doe's original petition to the superintendent and board members of UISD two days after the lawsuit was filed. The subject line of the email states, "Suit filed against UISD School Attorney Juan J. Cruz for Sexual Assault," and the body of the email states:

Good afternoon Superintendent Gonzalez and UISD Board,

A file-stamped copy of Plaintiff's Original Petition filed Monday against UISD school attorney Juan J. Cruz is attached for your review. The facts in the petition are very detailed, with dates and places. There is solid evidence including texts, photos and other conclusive proof substantiating the claims made therein.

This matter of public concern is being forwarded to you because it is understood that Mr. Cruz frequently visits UISD's schools where children are present, in order that you can take appropriate measures to safeguard the children under your care.

C. Doe's Amended Petition

Cruz filed an original answer, and thereafter Doe filed an amended petition. On the first page of the amended petition is a redacted photograph of Cruz in a swimming pool. A black square covers Cruz's body, except for his head and shoulders. The redacted photograph is captioned: "Powerful Evidence of Defendant Cruz'[s] Misconduct."^[2]

D. Cruz's Counterclaims

Cruz filed an amended answer and counterclaims. Cruz "categorically denie[d] that he has ever had forcible sexual contact with any person at any time," and he "categorically denie[d] that he has ever had sexual contact of any kind with a minor." Cruz alleged Doe's counsel held personal animosity toward Cruz and asserted that the aim of Doe's lawsuit was harm to Cruz's reputation and legal practice.

Cruz's first counterclaim is entitled "Revenge Porn: Unlawful Disclosure or Promotion of Intimate Visual Material." Cruz asserted those involved in filing Doe's amended petition, which included the redacted photograph, committed a crime under section 21.16 of the Texas Penal Code. See Tex. Penal Code § 21.16(b) ("A person commits an offense if . . . without the effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct . . .").^[3] Cruz also asserted Doe's amended petition, with the redacted photograph, "insinuat[es] that he is nude" and that "the preparation, filing, and prosecution of this revenge porn is civilly actionable" pursuant to Civil Practice and Remedies Code section 98B.001.

The second counterclaim is entitled "Hate Crime Reporting." Cruz asserted in this section that crimes "motivated by prejudice, hatred, or advocacy of violence must be reported" and "those responsible for the preparation, filing and prosecution of the revenge porn, which is a hate crime, should be reported to the Bureau of Identification and Records." The third counterclaim is entitled "Frivolous Pleadings." In this section, Cruz asserted Doe's lawsuit is groundless and the court should sanction Doe "and/or" his attorney. In his response to Doe's TCPA motion, Cruz argued his counterclaim for frivolous pleading was not subject to the TCPA; however, he does contest this matter on appeal.

After these sections, Cruz asserted counterclaims for defamation, tortious interference with contract, and intentional infliction of emotional distress ("IIED"). For his defamation claim, Cruz asserted Doe's attempted publication in the media and his publication to UISD board members of "this hate crime lawsuit" constituted libel. As to his tortious interference with contract claim, Cruz asserted Doe's email and service of pleadings and discovery on UISD board members constituted tortious interference with contract. For his IIED claim, Cruz asserted Doe intentionally or recklessly committed extreme and outrageous conduct that proximately caused severe emotional distress to Cruz.

E. Doe's TCPA Motion to Dismiss and Cruz's Response and Motion for Sanctions

Doe then filed a motion to dismiss Cruz's counterclaims pursuant to the TCPA. Cruz filed a response, Doe filed a reply, and the parties attached exhibits to their filings.

Cruz attached an affidavit, in which he stated:

I know the true identity of plaintiff "John Doe" in this litigation. He is currently 22 years of age. I met him in November, 2018 when he was 19 years old at the Laredo Country Club gym. I did not know "John Doe" when he was 16 years old, as alleged. I had a continuous, consensual, adult relationship with "John Doe" from August 2019 to December 2019. . . . I never sexually assaulted "John Doe."

Doe included an affidavit with his reply in which he averred: "I was a minor student at United Independent School District, where Mr. Cruz served as general counsel when he started sexually assaulting me." Doe also stated: "When I was only 16 years of age, Mr. Juan Cruz began his advances on me at the gym where I would exercise. Mr. Cruz's advances included licking his lips while staring provocatively at me and offensive touching, including massages of my arms and shoulders. I did not consent to this conduct." Next, Doe contended Cruz convinced Doe to work at his law firm and he alleged:

Mr. Cruz would also furnish alcohol and Xanax to me, which enabled him to assault me sexually. Mr. Cruz would require me to stay at his apartment in San Antonio . . . and his home . . in Laredo and sleep with him in his bed, where he would sexually assault me. Mr.

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