Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00519-CV
Michael MOLONEY and Sergio Cantu,
Appellants
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2023-CI-10651
Honorable Antonia Arteaga, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: October 14, 2026
AFFIRMED
Michael Moloney and Sergio Cantu appeal from the trial court’s granting of a traditional
motion for summary judgment in favor of United Services Automobile Association (“USAA”) on
their defamation claim. We affirm.
BACKGROUND
Moloney and Cantu sued USAA for defamation, alleging that they are the principals of
Informed Roofing & Restoration, LLC (“Informed Roofing”), which is primarily engaged in the
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residential roofing repair and replacement business, and that an employee or agent of USAA had
made false and defamatory statements to the San Antonio Police Department (“SAPD”)
concerning them. 1 Specifically, Moloney and Cantu alleged that an employee of USAA, Jackie
Johnston, “made false and defamatory statements to the San Antonio Police Department
concerning Informed Roofing and its principals,” Moloney and Cantu. Moloney and Cantu alleged
that “Johnston’s statements generally accuse[d] [them] of having intentionally damaged the roof
of Mr. Scot Lee,” a customer of Informed Roofing and an insured of USAA, “in the context and
furtherance of vandalism, insurance fraud, and criminal mischief.” 2
USAA filed a traditional and no-evidence motion for summary judgment on Moloney’s
and Cantu’s defamation claims. The trial court signed an Order Granting Defendant’s Traditional
Motion for Summary Judgment, granting USAA’s motion for summary judgment and ordering
that Moloney and Cantu take nothing on their claims against USAA. Moloney and Cantu appealed.
TRADITIONAL MOTION FOR SUMMARY JUDGMENT
In its traditional motion for summary judgment, USAA argued that (1) the defamation
claims brought by Moloney and Cantu are barred by the statute of limitations; (2) the statements
referred to in the police report are privileged; and (3) the alleged defamatory statements are not
“of and concerning” Moloney and Cantu, and thus cannot serve as the basis for their defamation
claims. On appeal, Moloney and Cantu argue that USAA failed to prove its entitlement to a
traditional summary judgment on any of these grounds.
1
In the first amended original petition filed on December 19, 2023, Informed Roofing & Restoration, LLC was added as a plaintiff. On March 25, 2025, Informed Roofing & Restoration, LLC filed a nonsuit of all its claims against USAA.
2
In the first amended petition, Moloney and Cantu also alleged that another USAA employee, Mark Ramirez, had made similar defamatory statements about them. In the second amended petition, Moloney and Cantu removed all allegations regarding any defamatory statements made by Ramirez.
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We review the trial court’s ruling on a motion for summary judgment de novo. See Dallas
Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). We “consider all grounds
presented to the trial court and preserved on appeal.” Id. “When reviewing a summary judgment,
we take as true all evidence favorable to the nonmovant and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor.” Id. “A trial court properly grants a defendant’s
traditional motion for summary judgment if the defendant disproves at least one element of each
of the plaintiff’s claims or establishes all elements of an affirmative defense to each claim.” Id.
(citation omitted). Once a “defendant produces sufficient evidence to establish the right to
summary judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence raising a genuine issue of material fact with regard to the element
challenged by the defendant.” Kaufman v. Islamic Soc’y, 291 S.W.3d 130, 144 (Tex. App.—Fort
Worth 2009, pet. denied).
“Whether statements are defamatory is initially a question for a court to decide.” Id.
“Questions regarding defamation liability should be submitted to a jury only where a publication
is of ambiguous or doubtful import.” Id. To prevail on their claims for defamation, Moloney and
Cantu must show that USAA published a defamatory statement that was “of and concerning” them.
See Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 429 (Tex. 2000); Cox Tex. Newspapers,
L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.—Austin 2007, pet. denied) (citing New York
Times v. Sullivan, 376 U.S. 254, 288 (1964)). “There must be evidence showing that the attack
was read as specifically directed at the plaintiff.” Rosenblatt v. Baer, 383 U.S. 75, 81 (1966). “In
other words, ‘[i]n order to entitle one to maintain an action for an alleged defamatory statement, it
must appear that [the plaintiff] is the person with reference to whom the statement was made.’”
Kaufman, 291 S.W.3d at 144 (quoting Newspapers, Inc. v. Matthews, 161 Tex. 284, 289, 339
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S.W.2d 890, 893 (1960)). “It is ‘not necessary that the individual referred to be named if those
who knew and were acquainted with the plaintiff understand from reading the publication that it
referred to [the] plaintiff’; however, the ‘settled law requires that the false statement point to the
plaintiff and to no one else.’” Id. at 145 (quoting Matthews, 339 S.W.2d at 894). When “the
plaintiff is not expressly named, the plaintiff may satisfy his burden on the ‘of and concerning’
element by offering proof that persons acquainted with the plaintiff would understand the
publication to refer to him.” Cox, 219 S.W.3d at 433 (citing Matthews, 339 S.W.2d at 894).
USAA argues that the summary judgment evidence shows that the alleged defamatory
statement made by its investigator was not “of and concerning” Moloney and Cantu. In support of
its motion for summary judgment, USAA attached the March 29, 2022 police report that allegedly
included the defamatory language, along with a declaration from the USAA investigator, Jackie
Johnston. The March 29, 2022 police report identified “R1” as Jackie Johnston and stated the
following:
I was contacted by R1 [Jackie Johnston] who is an investigator for USAA Ins. Co.
R1 said it appears the damage on the roof is mechanical and feels it was done
intentionally by unknown persons. Possibly by roofers. Report written as info.
report under Case Number SAPD 22053045 on 3/14/22. V1’s wife informed me
the roof is 15 years old. Case number given.
(emphasis added). In her declaration, Jackie Johnston stated that she is a senior investigator for
USAA and became involved in the investigation of a hail damage claim at an insured’s residence.
She stated that during that investigation, USAA became concerned that damage to an insured’s
roof had been caused mechanically, which Johnston explained meant that it appeared the damage
to the insured’s roof had been caused intentionally rather than by hail. Beginning on February 2,
2022, Johnston began investigating USAA’s concerns, and during the course of her investigation,
she determined “that there were legitimate concerns about potential vandalism.” Johnston was not
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able “to determine who or what the source cause of the damage was.” Johnston stated that she “did
not know who caused the damage” or who reported to SAPD that any particular person or company
caused the damage.
USAA also attached a deposition excerpt from Mark Ramirez who testified that he had
observed “[m]arks consistent with mechanical damage” on the USAA’s insured’s roof. Ramirez
testified that “[m]echanical damage can be viewed differently in different types of ways, because
it can be created manually by hand. It can be created manually by an instrument, it could be created
by stones, rocks, golf balls. There’s a multitude of items that can create mechanical damage.”
In their response to USAA’s motion for summary judgment, Moloney and Cantu submitted
a second police report dated March 14, 2022, which reported information obtained from USAA’s
insured, Scot Lee:
R1 [Scot Lee] informed me he had an adjuster from USAA Insurance come out and
look at his roof for damage. R1 said they found damage and also informed him
some of it appeared to be mechanical damage. In other words damage done by other
means than hail, limbs etc. R1 said he had his roof checked by a company called
“Informed” and R1 was pretty sure they had not done anything intentional to
damage the roof. R1 said USAA needed a report either way. I informed R1 [that] I
would document the incident and if there was any evidence of the roof being
intentionally damaged R1 would need to get a quote on the cost and a criminal
mischief report would be done. Case number given.
(emphasis added). Moloney and Cantu argue that when the two police reports are read together “in
context,” “the specific accusations of vandalism made by USAA against [Moloney and Cantu] and
their company become crystal clear.”
In her declaration, Jackie Johnston stated that while her investigation determined “that
there were legitimate concerns about potential vandalism” to the insured’s roof, she was not able
to determine who or what caused the damage to the insured’s roof. She further stated that she did
not report to SAPD that any particular person or company caused the damage. Johnston’s
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declaration is consistent with the March 29, 2022 police report, which reflects that USAA
employee Jackie Johnston said to the officer that the mechanical damage on the insured’s roof was
“mechanical,” which she believed was done “intentionally by unknown persons,” “[p]ossibly by
roofers.” (emphasis added). The March 29, 2022 police report does not name Moloney or Cantu,
or provide any information from which a person acquainted with them would understand that
Johnston’s statement about unknown persons referred to Moloney, Cantu, or Informed Roofing.
See Cox, 219 S.W.3d at 433.
Moloney and Cantu urge this court to read the March 29, 2022 in conjunction with the
March 14, 2022 police report. The March 14, 2022 police report chronicles information obtained
from the insured, Scot Lee, who is not an employee or agent of USAA. Further, the March 14,
2022 police report merely states that Lee informed the officer that an adjuster from USAA had
told him about “mechanical damage” to his roof. The police report reflects that Lee then told the
officer about having “his roof checked by a company called ‘Informed.’” Nowhere in the police
report does it reflect that an employee of USAA said to Lee that Informed Roofing caused the
mechanical damage. Instead, the police report reflects that Lee is the party who linked possible
mechanical damage to his roof with Informed Roofing having checked his roof for hail damage.
Moreover, the police report then states that Lee “was pretty sure they [the roofers with Informed
Roofing] had not done anything intentional to damage the roof.”
Based on this summary judgment record, we conclude that USAA provided evidence
showing that the police reports alleged to contain defamatory statements were not “of and
concerning” Moloney and Cantu. See Cox, 219 S.W.3d at 433 (explaining that to prevail on a
defamation claim, a plaintiff must show that the publication of the defamatory statement was “of
and concerning” him). Further, in reviewing the evidence submitted in response by Moloney and
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Cantu, we conclude that they did not produce any competent controverting evidence raising a
genuine issue of material fact that the publication of the alleged defamatory statement in the police
report was “of and concerning” them. See Kaufman, 291 S.W.3d at 144. Because USAA disproved
one element of Moloney and Cantu’s defamation claims as a matter of law, we hold the trial court
did not err in granting a traditional summary judgment in favor of USAA. 3
The trial court’s summary judgment is affirmed.
Adrian A. Spears II, Justice
3
Having determined that the summary judgment granted in favor of USAA can be upheld on this ground, we need not consider the other issues brought by Moloney and Cantu. See Johnson v. WalMart Stores Tex. LLC, No. 09-22-00436-CV, 2025 WL 243025, at *5 (Tex. App.—Beaumont Aug. 8, 2025, pet. denied).
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