Avid Square Construction, LLC and LCL Stillwater Development, LLC v. Valcon Consulting, LLC and Chad Courty

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00297-CV
___________________________
AVID SQUARE CONSTRUCTION, LLC AND LCL STILLWATER
DEVELOPMENT, LLC, Appellants
V.
VALCON CONSULTING, LLC AND CHAD COURTY, Appellees
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 21-2368-393
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
In this accelerated interlocutory appeal, Appellants LCL Stillwater
Development, LLC and Avid Square Construction, LLC challenge the trial court’s
denial of their motion to dismiss pursuant to the Texas Citizens Participation Act1
(TCPA), in which they sought to dismiss the defamation and business disparagement
claims filed against them by Appellees Valcon Consulting, LLC and Chad Courty.
Because we hold that Appellants are entitled to dismissal of these two claims under
the TCPA, we reverse the trial court’s judgment and render an order dismissing the
defamation and business disparagement claims. We remand to the trial court for a
determination of attorney’s fees and costs as to the dismissed claims.
I. Background
In 2016, LCL Stillwater began a construction project for student housing in
Oklahoma. LCL Stillwater hired Valcon and Courty as construction consultants (the
Consultants) on the project. The original contractor was later terminated, and Avid
Square Construction was formed to complete all remaining work on the project. In
2020, Valcon filed a lien on the project based on LCL Stillwater’s alleged failure to pay
Valcon and eventually sued LCL Stillwater in Oklahoma for breach of contract based
on that allegation.
In 2021, Appellants brought the underlying lawsuit against the Consultants in
Denton County for breach of contract and breach of fiduciary duty alleging that the
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011.
1
2
Consultants had (1) performed and/or supervised defective construction work and/or
inferior construction services on the project; (2) missed at least one critical delivery
date for the project because Courty was vacationing in Spain; and (3) ceased
performing work before completion of the project.
The Consultants then filed counterclaims against Appellants for breach of
contract,2 defamation, and business disparagement. As to the defamation and business
disparagement claims, the Consultants alleged that Appellants had made statements
“to one or more other persons” about the Consultants’ professional competence and
performance on the project. The Consultants’ pleading described the complained-of
statements as follows:
[Appellants] filed this lawsuit against [the Consultants] alleging, among
other things that Mr. Courty breached fiduciary duties that were owed to
[Appellants]. These claims against the [Consultants] are false and
baseless. Specifically, [Appellants] allege that the [Consultants] “walked
away” from the construction project that is the subject matter of this
lawsuit and left it with numerous construction defects. [Appellants] also
allege that Mr. Courty was “vacationing in Spain” and caused the project
to miss critical delivery dates.
Appellants moved to dismiss the Consultants’ defamation and business
disparagement claims on the basis that such claims were based on and brought in
response to Appellants’ right to petition pursuant to the TCPA. See id. § 27.003(a)
(motion to dismiss). Appellants argued that on the face of the Consultants’ pleadings,
2
The Consultants refiled their breach of contract claim that had originally been
brought in Oklahoma based on nearly identical facts. Appellants and the Consultants
agreed to abate proceedings in Oklahoma and to realign the parties in this lawsuit.
3
the factual basis for the claims complained solely of the allegations made by
Appellants in this lawsuit. In response, the Consultants argued that their claims were
not based on Appellants’ exercise of the right to petition but, rather, that the
defamatory and disparaging statements made by Appellants had been “communicated
outside of this lawsuit.” 3 In his affidavit, Courty asserted,
[b]y way of example only, oral statements . . . were made to construction
industry professional Oasis Plumbing, including, but not limited to, [the
Consultants were] the reason the [p]roject failed, [the Consultants]
abandoned the [p]roject while vacationing, and [the Consultants were] to
blame for water intrusion, structural failures[,] and plumbing difficulties.
According to the Consultants, because their claims were based on Appellants’
statements to a third party and not those statements as alleged in Appellants’ original
petition, the TCPA did not apply to Appellants’ claims.
The trial court heard Appellants’ TCPA motion and denied it. This
interlocutory appeal followed. See id. § 51.014(a)(12) (permitting interlocutory appeal
of an order denying a motion to dismiss filed under the TCPA).
II. The TCPA
The TCPA is commonly known as the Texas Anti-SLAPP statute, referring to
Strategic Lawsuits Against Public Participation. Bookout v. Shelley, No. 02-22-00055-
CV, 2022 WL 17173526, at *10 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.)
(mem. op.). Its purpose is “to encourage and safeguard the constitutional rights of
3
In support of their argument that the claims were not based on Appellants’
allegations in this lawsuit, the Consultants attached two exhibits to their response:
(1) the affidavit of Courty and (2) Appellants’ original petition.
4
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, protect the
rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.002. To effectuate this purpose, the TCPA provides “an
expedited procedure for the early dismissal of groundless legal actions that impinge on
First Amendment rights.” Greer v. Abraham, 489 S.W.3d 440, 442 (Tex. 2016).
This court has previously described the three-part burden-shifting analysis that
must be undertaken once a motion to dismiss is filed pursuant to the TCPA:
The three steps are as follows: (1) the party invoking the TCPA must
demonstrate that a “legal action” has been brought against it that is
“based on or is in response to” an exercise of the rights of free speech,
petition, or association protected by the Act; (2) if the moving party
successfully invokes the Act, “[t]he court may not dismiss a legal action
under this section if the party bringing the legal action establishes by
clear and specific evidence a prima facie case for each essential element
of the claim in question[”;] and (3) if the nonmoving party carries its
burden, the case may still be dismissed “if the moving party establishes
an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” [Tex. Civ. Prac. & Rem. Code
Ann.] § 27.005(b)–(d).
Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *7 (Tex. App.—Fort
Worth Mar. 11, 2021, no pet.) (mem. op.); see Bookout, 2022 WL 17173526, at *10.
III. Discussion
Appellants argue that the trial court erred in denying their TCPA motion because
(1) the Consultants’ defamation and business disparagement claims are based on or in
response to Appellants’ allegations in this lawsuit—that is, their right to petition; (2) the
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Consultants failed to provide clear and specific evidence of each element of the
challenged claims; and (3) the Consultants’ claims are barred by judicial privilege.
In response, the Consultants argue (1) that Appellants failed to show that the
TCPA applied to the Consultants’ claims; (2) that the Consultants showed by clear
and specific evidence a prima facie case for each essential element of the challenged
claims; and (3) that Appellants failed to show the defense of judicial privilege applied
to the statements related to the challenged claims in the lawsuit.
A. Standard of Review
We review de novo a trial court’s denial of a motion to dismiss filed under the
TCPA. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018);
Bookout, 2022 WL 17173526, at *10; Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 571
(Tex. App.—Fort Worth 2019, pet. denied). In our review, we must consider the
pleadings, any evidence that a court could consider on summary judgment, and any
submitted affidavits stating the facts on which liability or a defense is based. Tex. Civ.
Prac. & Rem. Code Ann. § 27.006(a); S&S Emergency Training Sols., Inc. v. Elliott, 564
S.W.3d 843, 847 (Tex. 2018). The nonmovant’s pleadings are “the best and all-
sufficient” evidence of the nature of its claims against the party seeking dismissal
under the TCPA. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); Jackson v. Kell Auto
Sales, Inc., No. 02-21-00106-CV, 2021 WL 5367846, at *2 (Tex. App.—Fort Worth
Nov. 18, 2021, no pet.) (mem. op.).
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B. The TCPA’s Applicability
We must first determine whether Appellants—as the parties invoking the
TCPA—met their burden to show that the Consultants’ legal action is “based on or is
in response to” Appellants’ exercise of the right to petition. Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.003(a), 27.005(b); Miller, 2021 WL 924843, at *7. We conclude that
Appellants met their burden.
1. Exercise of the Right to Petition
“Courts must adhere to legislative definitions of terms when they are supplied.”
Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (citing Tex. Gov’t Code Ann.
§ 311.011(b)). Under the TCPA, the “exercise of the right to petition” is defined as “a
communication in or pertaining to . . . a judicial proceeding.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.001(4)(A)(i). This includes, among other things, “a communication in
connection with an issue under consideration or review by a legislative, executive,
judicial, or other governmental body” and “a communication that is reasonably likely
to encourage consideration or review of an issue by a legislative, executive, judicial, or
other governmental body.” Id. § 27.001(4)(B), (C). The TCPA’s definition of
“communication” is broad and involves “the making or submitting of a statement or
document in any form or medium.” Id. § 27.001(1).
Here, the filings by Appellants in this lawsuit were clearly an exercise of the
right to petition as defined by the TCPA. See id. § 27.001(4)(A); Creative Oil & Gas,
LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137 (Tex. 2019) (agreeing with
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appellate court and concluding commencement of litigation and party’s filings in
lawsuit were exercise of right to petition); Youngkin, 546 S.W.3d at 680 (“Substituting
the statutory definitions for the defined terms, we see that the TCPA applies to a . . .
party’s making or submitting of a statement or document in or pertaining to a judicial
proceeding.”); Sunchon Yu v. Sun Joo Koo, 633 S.W.3d 712, 725 (Tex. App.—El Paso
2021, no pet.) (“[D]ocuments filed within civil litigation are considered
communications made in a judicial proceeding.”); see also Adams, 547 S.W.3d at 894
(“The TCPA casts a wide net.”).
2. “Based on, Relates to, or is in Response to”
The Consultants contend the statements upon which their claims are based are
not protected by the right to petition because Appellants repeated the statements to
third parties in the construction industry—namely, Oasis Plumbing—outside of the
lawsuit, and such statements do not become protected by virtue of being repeated in
or made part of a claim in a lawsuit.4 Appellants argue that the Consultants failed to
adequately and fairly plead a cause of action based on alleged statements to a plumber,
and even if they had, the TCPA would still apply.
a. The Consultants’ Pleading
The Consultants’ pleading is “the best and all-sufficient” evidence of the nature
of their claims against Appellants. Hersh, 526 S.W.3d at 467. The facts section of the
4
The Consultants cite no authority supporting this argument.
8
Consultants’ pleading included a recitation of Appellants’ allegations against them in
this lawsuit and asserted the following:
• None of the allegations of wrongdoing against the [Consultants] are true.
All of the allegations concern the economic interests of [the
Consultants], including their interests in past, current, and future
business dealings on construction projects.
• Upon information and belief, at the time they filed suit, [Appellants] knew
the allegations of wrongdoing against the [Consultants] were false, acted
with reckless disregard for whether they were false, acted with ill will
towards the [Consultants], and/or intended to interfere with the
economic interests of [the Consultants].
[Emphasis added.] The Consultants further alleged that Appellants “published the
false statements of fact described above orally and/or in writing to one or more other
persons.” However, they did not describe when or where the statements were
published, nor did they disclose the identity of “one or more other persons.”
The Consultants’ pleading implicitly demonstrates that the “false statements of
fact described above” are precisely those made by Appellants when they “filed this
lawsuit against [the Consultants].” Certainly, the “false statements of fact described”
in the pleading consist of Appellants’ specific allegations of wrongdoing against the
Consultants—an almost verbatim recitation of Appellants’ petition. And while the
pleading does not explicitly state when or where the complained-of statements were
published, it does pinpoint Appellants’ knowledge, acts, and intent “at the time they
filed suit.” In other words, the Consultants’ pleading complains of the allegations
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made by Appellants in this lawsuit, which were effectively “published . . . to one or
more other persons” by way of Appellants’ petition “at the time they filed suit.”
b. The Consultants’ Response to Appellants’ TCPA Motion
To circumvent the application of the TCPA, the Consultants responded to
Appellants’ TCPA motion alleging—for the first time—that the “false statements of
fact described” in Appellants’ pleading had been “communicated outside of this
lawsuit.” In support of their response, the Consultants attached the affidavit of
Courty in which he identifies—again, for the first time—Oasis Plumbing: 5
In the context of pursuing business transactions with other businesses in
the construction industry, [Appellants] made statements about [the
Consultants] orally or in writing to one or more persons. The substance
of the statements consisted of the above referenced claims made about
[the Consultants] by [Appellants] in this lawsuit[] but were
communicated outside of this lawsuit. By way of example only, oral
statements of this nature were made to construction industry
professional Oasis Plumbing, including, but not limited to, [the
Consultants] were the reason the [p]roject failed, [the Consultants]
abandoned the [p]roject while vacationing, and [the Consultants] were to
blame for water intrusion, structural failures and plumbing difficulties.
Appellants argue that Courty’s reference to Oasis Plumbing is a conclusory, after-the-
fact assertion not supported by the Consultants’ pleading and asserted only to bring
their claims outside the scope of the TCPA’s protections. The Consultants contend
5
Notably, when the Consultants served their initial disclosures on Appellants—
approximately thirteen months before Courty signed his affidavit—the Consultants
did not identify Oasis Plumbing or any other third party in the construction industry
as persons with knowledge of relevant facts.
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Courty’s affidavit “further elaborates” on their previous allegation that Appellants’
statements had been made to third parties. We agree with Appellants.
Much like the Consultants’ pleading, Courty’s affidavit does not describe when
or where the alleged statements were made, nor does it identify who made the
statements on behalf of Appellants or the person from Oasis Plumbing to whom the
statements were made. Courty also vaguely asserted that the third-party
communications had occurred “[i]n the context of pursuing business transactions”
but did not explain the “context” or nature of said business transactions or the parties
involved. Further, the Consultants failed—in the trial court and on appeal—to explain
how they knew or came to believe that Appellants had made the statements to Oasis
Plumbing or to otherwise identify the facts upon which they base their conclusion
that Appellants had made such statements. Without more than vague and conclusory
allegations, Courty’s affidavit is not competent evidence. See Bishara v. Tex. Health
Harris Methodist Hosp. Fort Worth Inc., No. 02-20-00316-CV, 2021 WL 3085748, at *6
(Tex. App.—Fort Worth July 22, 2021, no pet.) (mem. op.) (“A conclusory statement
is one that does not provide the underlying facts to support the conclusion and is not
considered competent evidence.”); Conclusory, Black’s Law Dictionary (11th ed. 2019).
c. Analysis
Based on the factual allegations underlying the Consultants’ counterclaims and
the conclusory “evidence” provided in response to Appellants’ TCPA motion, we
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conclude the counterclaims were based on, related to, or in response to Appellants’
exercise of the right to petition.
Despite the Consultants’ attempts to distinguish their counterclaims from the
allegations made by Appellants in this lawsuit, the counterclaims do not rely on
allegations of fact outside the context of this lawsuit and are not independent of
Appellants’ communications in this lawsuit. See Creative Oil & Gas, 591 S.W.3d at 137
(holding counterclaim premised on plaintiff commencing lawsuit was in response to
plaintiff’s exercise of the right to petition and was subject to TCPA dismissal); Hersh,
526 S.W.3d at 467 (“When it is clear from the [nonmovant’s] pleadings that the action
is covered by the [TCPA], the [movant] need show no more.”); Serafine v. Blunt, 466
S.W.3d 352, 372–73 (Tex. App.—Austin 2015, no pet.) (op. on reh’g) (Pemberton, J.,
concurring) (“[T]he focus has been solely on the factual allegations underlying the
challenged ‘legal action’ and whether they correspond to one of the [TCPA’s]
definitions of protected conduct[.]”); cf. Jackson, 2021 WL 5367846, at *2 (observing
the facts alleged in defendant’s counterclaim did not mention plaintiff’s claims against
it and holding counterclaim was solely concerned with communications occurring
before, outside of, and unrelated to plaintiff’s claims against defendant). To be sure,
the Consultants even attached Appellants’ original petition as an exhibit in support of
their response to Appellants’ TCPA motion, and both the response and Courty’s
affidavit recite the specific allegations contained therein.
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Accordingly, we hold that the Consultants’ defamation and business
disparagement counterclaims were directed to Appellants’ right to file a meritorious
lawsuit for demonstrable injury and thus fall within the purpose of the TCPA’s
protection. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
3. The Commercial Speech Exemption to the TCPA
The Consultants argued in the trial court—and on appeal—that the TCPA does
not apply to their claims because of the TCPA’s commercial speech exemption.
Appellants argue that the commercial speech exemption does not apply here, and we
agree.
Section 27.010 provides that the TCPA does not apply to a claim against a
person who is “primarily engaged in the business of selling or leasing goods or
services, if the statement or conduct arises out of the sale or lease of goods,
services . . . , or a commercial transaction in which the intended audience is an actual
or potential buyer or customer.” Id. § 27.010(a)(2). Four conditions must be met for
this exemption to apply:
(1) the defendant was primarily engaged in the business of selling or
leasing goods [or services], (2) the defendant made the statement or
engaged in the conduct on which the claim is based in the defendant’s
capacity as a seller or lessor of those goods or services, (3) the statement
or conduct at issue arose out of a commercial transaction involving the
kind of goods or services the defendant provides, and (4) the intended
audience of the statement or conduct were actual or potential customers
of the defendant for the kind of goods or services the defendant
provides.
13
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). “[C]onstruing the
TCPA liberally means construing its exemptions narrowly.” ADB Int., LLC v. Wallace,
606 S.W.3d 413, 428 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (citing State
ex rel. Best v. Harper, 562 S.W.3d 1, 14 (Tex. 2018)).
The Consultants had the burden to establish the commercial speech
exemption’s applicability. See UATP Mgmt., LLC v. Leap of Faith Adventures, LLC, No.
02-19-00122-CV, 2020 WL 6066197, at *4 (Tex. App.—Fort Worth Oct. 15, 2020,
pet. denied) (mem. op.); VetMoves v. Lone Star Veterinarian Mobile Surgical Specialists, PC,
No. 02-19-00340-CV, 2020 WL 1887770, at *3 (Tex. App.—Fort Worth Apr. 16,
2020, no pet.) (mem. op.). In their response to Appellants’ TCPA motion, the
Consultants argued that Appellants’ statements “consisted of the substance of the
claims made in this lawsuit repeated outside of the proceedings with the intended
audience being . . . other persons and entities with which they do business or offer
their services.” The Consultants vaguely asserted that Appellants “are engaged in
various activities in the construction industry related to development of properties
and/or construction projects.” They did not define “various activities” or otherwise
explain Appellants’ role in the construction industry.
The “sale or lease of goods or services” refers to “the defendant’s sale or lease of
goods or services.” Castleman, 546 S.W.3d at 688. The commercial speech exemption
therefore does not apply when the defendant “speaks of other goods or services in the
marketplace.” Id. at 689 (emphasis added). Thus, when the defendant speaks of goods or
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services that the defendant does not sell or lease, the commercial speech exemption does
not apply. Id.; see ADB Int., 606 S.W.3d at 428–29 (citing Dickens v. Jason C. Webster, P.C.,
No. 05-17-00423-CV, 2018 WL 6839568, at *5 (Tex. App.—Dallas Dec. 31, 2018, no
pet.) (mem. op.)). The “distinction between comments about goods and services available
in the marketplace and those sold by the person making the statements is consistent with
the [Texas] Supreme Court’s instruction that the TCPA’s exemptions must be construed
narrowly.” ADB Int., 606 S.W.3d at 430 (citing Harper, 562 S.W.3d at 14).
The Consultants alleged that the complained-of statements were made to a
“construction industry professional” and that the intended audience of the statements
were “other businesses with whom [the Consultants] and Appellants both routinely
pursue business opportunities in the construction industry.” However, the conclusory
assertions in Courty’s affidavit, even accepted as true, do not show that the
complained-of statements were made in the context of Appellants’ sale of goods or
services or that Oasis Plumbing was an “actual or potential buyer[] or customer[].” See
MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180, 195 (Tex. App.—El Paso
2017, no pet.) (quoting Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,
441 S.W.3d 345, 354 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)); see Toth v.
Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (“[T]he mere fact that a person sells goods or services does not
deny him the TCPA’s protections when he speaks of ‘other goods’ in the
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marketplace.” (citing Castleman, 546 S.W.3d at 688)). And nothing in the record shows
that the statements meet either requirement.
We conclude that, had Appellants actually made the complained-of statements
to Oasis Plumbing, the statements would have “constituted protected speech warning
[the Consultants’] customers about the quality of [the Consultants’] services, not
pursuing business for [Appellants].” Castleman, 546 S.W.3d at 691; see ADB Int., 606
S.W.3d at 429. Thus, the commercial speech exemption does not apply here, and
Appellants have met their burden to establish the TCPA’s application here.
Because we conclude that Appellants met their initial burden to show that the
TCPA applies, we next consider whether the Consultants “established by clear and
specific evidence a prima facie case for each essential element of the[ir] claim[s]” for
defamation and business disparagement. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
C. Prima Facie Case
To determine whether the nonmovant “establishe[d] by clear and specific
evidence a prima facie case for each essential element of the claim,” id., courts
typically look at the pleadings and affidavits. In re Lipsky, 460 S.W.3d 579, 590 (Tex.
2015). A plaintiff is generally not required to “set out in his pleadings the evidence
upon which he relie[d] to establish his asserted cause of action.” Paramount Pipe &
Supply Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988); see Tex. R. Civ. P. 45, 47.
“But the TCPA requires that on motion the plaintiff present ‘clear and specific
evidence’ of ‘each essential element.’” Lipsky, 460 S.W.3d at 590. Thus, under the
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TCPA’s “clear and specific evidence” standard, “mere notice pleading—that is, general
allegations that merely recite the elements of a cause of action—will not suffice.” Id. at
590–91. Instead, the nonmovant must “provide enough detail to show the factual basis
for its claim” and must provide enough evidence “to support a rational inference that
the allegation of fact is true.” Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex.
2019) (quoting Lipsky, 460 S.W.3d at 590–91). Indeed, “pleadings that might suffice in a
case that does not implicate the TCPA may not be sufficient to satisfy the TCPA’s
‘clear and specific evidence’ requirement.” Lipsky, 460 S.W.3d at 590.
In these contexts, “clear and specific” means “unambiguous, sure, or free from
doubt” for the former and “explicit or relating to a particular named thing” for the
latter. Id. (quotation marks omitted). The nonmovant “may rely on circumstantial
evidence . . . unless ‘the connection between the fact and the inference is too weak to
be of help in deciding the case.’” Dall. Morning News, 579 S.W.3d at 377 (quoting Lipsky,
460 S.W.3d at 589). Conclusory statements and baseless opinions are not probative and
do not meet the requirement of clear and specific evidence sufficient to establish a
prima facie case. Lipsky, 460 S.W.3d at 592–93; see Nichols v. Lightle, 153 S.W.3d 563,
570–71 (Tex. App.—Amarillo 2004, pet. denied) (holding affidavit that does not
provide specific factual bases for the affiant’s conclusions does not constitute evidence).
A “prima facie case” refers to “evidence sufficient as a matter of law to
establish a given fact if it is not rebutted or contradicted,” and the burden is met by
“the ‘minimum quantum of evidence necessary to support a rational inference that the
17
allegation of fact is true.’” Lipsky, 460 S.W.3d at 590 (quoting In re E.I. DuPont de
Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding)). “[A] TCPA
nonmovant ‘cannot rely on speculation to satisfy its burden of proof’ of establishing a
prima facie case for each element of its claim.” Mogged v. Lindamood, No. 02-18-00126-
CV, 2020 WL 7074390, at *9 (Tex. App.—Fort Worth Dec. 3, 2020, pet. denied)
(en banc op. on reh’g).
1. The Challenged Claims
Appellants argue that the Consultants failed to meet their burden of
establishing by clear and specific evidence a prima facie case for each element of both
defamation and business disparagement. The Consultants respond that they met their
burden with respect to both claims. Because the two claims are based on the same
pleadings and evidence, we discuss them together.
a. Defamation
There are four elements of defamation, which the Texas Supreme Court has
described as the following:
(1) the publication of a false statement of fact to a third party[;] (2) that
was defamatory concerning the plaintiff[;] (3) with the requisite degree of
fault, at least amounting to negligence[;] and (4) damages, in some cases.
A defamatory statement is one that “tends . . . to harm the reputation of
another as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.
Innovative Blocks of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex.
2020) (citations omitted). Generally, in order for a party responding to a TCPA motion to
18
make a prima facie showing of each element of defamation, the party’s pleadings and
evidence must “establish[] the facts of when, where, and what was said, the defamatory
nature of the statements, and how they damaged the plaintiff.” Lipsky, 460 S.W.3d at 591.
Appellants contend the Consultants failed to provide clear and specific
evidence of damages or that the statements were either made to third parties or were
false or defamatory. The Consultants argue that Appellants’ statements are objectively
false and constitute defamation per se, which means damages are presumed.
b. Business Disparagement
“To prevail on a business disparagement claim, a plaintiff must establish that
(1) the defendant published false and disparaging information about [the plaintiff],
(2) with malice, (3) without privilege, (4) that resulted in special damages to the
plaintiff.” Id. at 592 (quoting Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170
(Tex. 2003) (footnote omitted)).
Appellants contend the Consultants failed to present clear and specific
evidence of special damages and of the publication of a false statement to a third
party. The Consultants respond that, as shown by Courty’s affidavit, Appellants
published false and disparaging information about the Consultants by making
statements about their work to others in the construction industry. The Consultants
also argue that “malice” can be inferred—based on an unrelated arbitration between
Appellants and the original contractor in which Courty was a witness—and that the
Consultants suffered special damages as a result.
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2. Analysis
Defamation and business disparagement are similar in that both “involve harm
from the publication of false information” to third parties. Lipsky, 460 S.W.3d at 591
(citing Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155
(Tex. 2014)); Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). But
the two causes of action serve different interests. Lipsky, 460 S.W.3d at 591.
“Defamation serves to protect one’s interest in character and reputation, whereas
disparagement protects economic interests . . . .” Valley Builders Supply, 603 S.W.3d at
417 (citing Lipsky, 460 S.W.3d at 591). Thus, the elements of business disparagement
“are more stringent than those of defamation.”6 Id.
Here, regardless of whether the Consultants produced sufficient evidence of
the other elements, an issue we need not address, 7 they did not meet the first element
6
The supreme court provided the following examples:
[I]n business disparagement the plaintiff must prove the defendant’s
statement false, whereas in defamation the defendant bears the burden
of proving truth. In business disparagement, the plaintiff must always
prove malice, whereas in defamation mere negligence is sufficient in
some cases. Finally, in disparagement only special damages can be
recovered for actual pecuniary loss, whereas in defamation per se the
existence of an injury to reputation is presumed and no actual financial
damage need be proved.
Id. at 417 n.3.
See Hersh, 526 S.W.3d at 468 (addressing only one element of the relevant tort
7
when nonmovant failed to produce sufficient evidence as to that element).
20
of either defamation or business disparagement—the publication of a false statement
to a third party. Based on the pleadings and evidence, we conclude the Consultants
failed to meet their burden under the TCPA. See Lipsky, 460 S.W.3d at 591.
a. The Pleading
The Consultants’ pleading is no more than mere notice pleading: the general
allegations of Appellants’ wrongdoing merely recite the elements of the challenged
claims. And as discussed above, the Consultants’ pleading does not describe when or
where the alleged statements were published, and outside the context of this lawsuit,
the Consultants failed to describe how the alleged statements were published or to
whom they were published—only a general allegation that the statements were
published “orally and/or in writing.” Further, the Consultants failed to distinguish
between the statements purportedly “published . . . to one or more other persons”
and the allegations made by Appellants’ in this lawsuit. 8 The pleading therefore does
not “provide enough detail to show the factual basis” of the Consultants’ claims for
defamation or business disparagement, see Dall. Morning News, 579 S.W.3d at 377, and
8
Contrary to the Consultants’ argument on appeal that Courty’s affidavit
“further elaborates” on this distinction, the Consultants indisputably did not plead
that Appellants “repeated” the complained-of statements outside of this lawsuit to
third parties in the construction industry, such as Oasis Plumbing. Even under fair notice
pleading—which is less restrictive than the “clear and specific evidence” standard—
Appellants would not have been able to “ascertain from the pleading the nature and
basic issues of the controversy and what testimony will be relevant,” i.e., relevant
testimony from Oasis Plumbing or any other unidentified third parties in the
construction industry with personal knowledge of the nature of and circumstances
surrounding the alleged statements made by Appellants. See Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).
21
is insufficient to satisfy the TCPA’s “clear and specific evidence” requirement, see
Lipsky, 460 S.W.3d at 590; MVS Int’l, 545 S.W.3d at 202–03.
b. The Evidence
The Consultants did not provide any competent evidence in support of the
challenged claims. While the trial court could consider the facts alleged in the
Consultants’ pleading, the Consultants were still required to produce evidence in
support of those allegations. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); E.I.
DuPont de Nemours & Co., 136 S.W.3d at 223; Sunchon Yu, 633 S.W.3d at 729 (“Neither
the pleadings themselves, nor the allegations within them, constitute evidence.”); In re
Elamex, S.A. de C.V., 367 S.W.3d 891, 898 (Tex. App.—El Paso 2012, orig.
proceeding) (“[A]llegations contained in pleadings are not evidence, even if sworn or
verified . . . .”). Affidavits may be used as evidence to make the requisite prima facie
showing, Lipsky, 460 S.W.3d at 590–91, but an affidavit that does not provide specific
factual bases for the affiant’s conclusions does not constitute evidence, Nichols, 153
S.W.3d at 570–71. Additionally, the affidavit must “be based on personal knowledge,
not supposition.” Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010)
(op. on reh’g) (disregarding affiant’s assertions not based on personal knowledge); see
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (holding affidavit was legally
insufficient when it failed to show how affiant could have had knowledge of the
events she described); MVS Int’l, 545 S.W.3d at 202.
22
As discussed above, Courty’s affidavit is not competent evidence. See Bishara,
2021 WL 3085748, at *6. In the affidavit, Courty stated in general terms that
Appellants’ statements were made, “[b]y way of example only,” to construction
industry professional Oasis Plumbing. This assertion is not supported by the
pleadings, and the affidavit is devoid of any underlying facts supporting the proffered
“example” or even illustrating the context of the alleged statements to Oasis
Plumbing—or any other third party. See id.; Nichols, 153 S.W.3d at 570–71. For
example, it does not identify who made the statements on behalf of Appellants, the
person to whom the statements were made, when the statements were made, or where
the statements were made. Additionally, the affidavit does not discuss how Courty
knows the statements were made or otherwise explain how he had any personal
knowledge of the statements. Nowhere in the record do the Consultants explain how
they came to know of the alleged exchange between Appellants and Oasis
Plumbing—or any other third party. Such bare and baseless opinions are conclusory
and are not probative. See Dall. Morning News, 579 S.W.3d at 377 (permitting
circumstantial evidence unless the connection between the fact and the inference is
too weak); Lipsky, 460 S.W.3d at 592–93; MVS Int’l, 545 S.W.3d at 202–03. Further,
the affidavit is neither “unambiguous” nor “free from doubt” because conveniently,
the first time the Consultants revealed that the alleged statements had been “repeated”
to third parties in the construction industry or Oasis Plumbing was in their attempt to
avoid dismissal under the TCPA. See Lipsky, 460 S.W.3d at 590.
23
For these reasons, Courty’s affidavit is insufficient to satisfy the TCPA’s
requirement of “clear and specific evidence.” Without any evidence9 beyond the
Consultants’ indistinguishable, conclusory allegations, we must conclude that the
Consultants failed to provide “the ‘minimum quantum of evidence necessary to
support a rational inference that the allegation of fact is true.’” Lipsky, 460 S.W.3d at
590 (quoting E.I. DuPont de Nemours & Co., 136 S.W.3d at 223).
Based on the pleadings and evidence, we hold the Consultants failed to
establish by clear and specific evidence a prima facie case of either defamation or
business disparagement. Because the Consultants have not met their burden, we do
not reach the third step of the burden-shifting analysis. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(d); Miller, 2021 WL 924843 at *7.
9
The only other “evidence” provided by the Consultants in support of their
response to Appellants’ TCPA motion was Appellants’ original petition. But as we
have stated, pleadings are not evidence sufficient to satisfy the TCPA’s requirements,
and the Consultants failed to provide clear and specific evidence distinguishing their
conclusory allegations of extrajudicial statements from the allegations made by
Appellants in this lawsuit—particularly when the Consultants rely on Appellants’
petition to assert that distinction.
24
IV. Conclusion
We reverse the trial court’s order denying Appellants’ TCPA motion and
render an order dismissing the Consultants’ defamation and business disparagement
claims. We remand to the trial court for a determination of attorney’s fees and costs as
to those claims.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: April 27, 2023
25