Makeda Sylvester v. Perri Michael

Affirmed and Opinion Filed November 14, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00360-CV
MAKEDA SYLVESTER, Appellant
V.
PERRI MICHAEL, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-23-16335
MEMORANDUM OPINION
Before Justices Molberg, Breedlove, and Kennedy
Opinion by Justice Breedlove
Makeda Sylvester appeals the trial court’s denial of her motion to dismiss
Perri Michael’s claims under the Texas Citizens Participation Act. TEX. CIV. PRAC.
& REM. CODE ANN. §§ 27.001–.011 (TCPA). Concluding that Michael offered clear
and specific evidence on each element of her claims and Sylvester did not establish
she was entitled to judgment as a matter of law on her affirmative defenses, we
affirm the trial court’s order.
BACKGROUND
Michael is an attorney who works in the legal department of Peloton
Interactive, Inc. Sylvester, an administrative assistant, also worked for Peloton.
During the time they both worked in Peloton’s New York office, they became friends
and exchanged what Michael describes as “friendly and joking banter” on social
media and in text messages. But Sylvester later filed a complaint of discrimination
against the company and—according to Michael—“recast” the “banter” as
“threatening and abusive” in order to “bolster her allegations” when Peloton failed
to offer her any concessions. Sylvester’s complaints resulted in two internal
investigations at Peloton.
Sylvester also posted accusations against Michael on social media. She posted
a “call to action” on LinkedIn, alleging that Michael engaged in workplace
retaliation against her. According to Michael, the gist of the post was that Michael
had been used by Peloton to “carry out their racist biddings” and was rewarded with
incentives and promotions in exchange for bullying Sylvester. Sylvester also
accused Michael of creating an “OnlyFans” account under Sylvester’s name and
uploading pornographic videos of Sylvester on it.
On September 20, 2023, Michael filed this suit asserting claims for
defamation, business disparagement, and malicious prosecution against Sylvester
and alleging that Sylvester had engaged in “a campaign of disparagement” against
her. She pleaded that Sylvester made “false claims to Ms. Michael’s employer” and
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“published false statements on LinkedIn and other social media platforms that
accused Ms. Michael of criminal activity.” Michael also alleged that Sylvester made
a “false and disparaging criminal harassment complaint” against Michael with the
Newark police department, months after Michael had allegedly made the offending
post, moved to Texas, and ceased all communication with Sylvester.
Sylvester answered and filed a TCPA motion to dismiss, alleging that her
“communications on social media are protected communications expressing her
opinion about [Michael’s] conduct.” She argued that opinions she posted on social
media “concerning [Michael’s] conduct including [Michael’s] threats and cyber-
bullying” “should be found to qualify as ‘communications’ as defined by the
TCPA.”
In her TCPA motion, Sylvester argued that her “communications on social
media are protected communications expressing her opinion about [Michael’s]
conduct”:
Social media posts, such as those made by [Sylvester] reflect an opinion
about [Michael’s] threats, cyber-bullying, and other conduct. The
Texas legislature recognizes the right of free speech and passed the
TCPA . . . so that people like [Sylvester] can state their opinions on
social media without risking ruinous litigation for exercising their right
to free speech. . . .
In this case, [Sylvester] posted opinions concerning [Michael’s]
conduct including her threats and cyber-bullying. These social media
posts should be found to qualify as “communications” as defined by the
TCPA. . . .
Here, [Sylvester] explained to the public that [Michael], who is an
attorney, had threatened a physical assault and engaged in
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cyberbullying. . . . [Sylvester] in this case made social media posts that
are a matter of public concern: that an attorney was threatening a
physical assault and bullying her. The communications qualify as a
matter of public concern. [Sylvester] therefore has made the relevant
showing under step one of the TCPA, and the burden now shifts to
[Michael].
After Sylvester filed her motion to dismiss, Michael moved for “expedited
specified and limited discovery under [TCPA] § 27.006(b).” Michael submitted four
proposed interrogatories and nine proposed requests for production with her motion.
Michael argued that “[t]hese limited discovery requests go to the heart of whether
[Sylvester’s] statements posted on social media and made to Peloton and law
enforcement were, in fact, ‘true’—as [Sylvester] claims in her TCPA Motion—and
whether the statements that [Sylvester] made can qualify as a ‘matter of public
concern.’” Michael also explained her “belie[f] that the limited discovery sought not
only will evidence that [Sylvester’s] alleged statements were false but also that
[Sylvester] knew such statements were false at the time that she made such
misrepresentations.”
Michael’s four interrogatories sought information from Sylvester about the
“fake pages” and “OnlyFans” accounts Sylvester accused Michael of creating on
social media. Michael also asked for information about Sylvester’s allegation that
Michael was having an affair with Sylvester’s boyfriend. The nine categories of
documents Michael requested also related to these topics and to the complaint
Sylvester made to the police. Michael also requested leave to serve a subpoena on
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Peloton for deposition on written questions and production of documents relating to
Sylvester’s complaints to Peloton about Michael.
The trial court granted the motion, ruling that Michael “may serve and obtain
the limited discovery attached to her Motion as Exhibits A and B, and [Sylvester]
shall serve her responses within 14 days of service of the same.” The court also
granted leave to serve the subpoena on Peloton and ruled that the parties “shall
exchange initial disclosures within the time set forth above.”
Michael then filed her response to the motion to dismiss, proffering affidavit
testimony from five witnesses and Sylvester’s discovery responses. Sylvester filed
a reply. Sylvester also filed an objection and motion to strike the declaration of
Cassandre Lamarre on the ground that Lamarre was not identified in Michael’s rule
194.2 disclosures. In her reply, Sylvester raised for the first time1 a complaint that
limitations barred one of Michael’s defamation claims.
After a hearing, the trial court denied Sylvester’s motion to dismiss by written
order dated March 20, 2024. This appeal followed. Sylvester’s appellate complaints
arise from two contentions: (1) the trial court failed to consider evidence of
Michael’s alleged ethical violations, and (2) the trial court considered evidence that
was not included in Michael’s initial disclosures.
1
In her operative answer, Sylvester generally pleaded “the affirmative defense of statute of limitations,”
but she did not include any mention of the defense in her TCPA motion.
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APPLICABLE LAW AND STANDARD OF REVIEW
The TCPA protects citizens from retaliatory lawsuits that seek to silence or
intimidate them for exercising their rights in connection with matters of public
concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). See
generally TCPA §§ 27.001–.011. The stated purpose of the statute is “to encourage
and safeguard the constitutional rights of 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.” TCPA § 27.002.
To accomplish this purpose, the statute provides a three-step procedure to
expedite dismissing claims brought to intimidate or to silence a defendant’s exercise
of a protected right. Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); see
also TCPA §§ 27.003(a), 27.005. In step one, the movant bears the initial burden of
showing by a preponderance of the evidence 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. TCPA § 27.005(b); see also S&S Emergency Training Sols.,
Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). A movant may seek dismissal even
if she denies making the communication. Hersh v. Tatum, 526 S.W.3d 462, 463
(Tex. 2017).
If the movant makes this initial showing, the burden shifts to the nonmovant
in step two to establish by clear and specific evidence a prima facie case for each
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essential element of its claims. TCPA § 27.005(c); see also Elliott, 564 S.W.3d at
847. “Prima facie case” refers to evidence sufficient as a matter of law to establish a
given fact if it is not rebutted or contradicted. Lipsky, 460 S.W.3d at 590. This
standard requires the nonmovant to bring forth “the ‘minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true.’” Id.
(quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)
(orig. proceeding) (per curiam)). “Prima facie evidence is evidence that will suffice
as proof of a fact in issue; in other words, a prima facie case is one that will entitle a
party to recover if no evidence to the contrary is offered by the opposite party.”
Mishkoff v. Garrett, No. 05-22-01063-CV, 2024 WL 770142, at *3 (Tex. App.—
Dallas Feb. 26, 2024, pet. denied) (mem. op.) (internal quotation omitted).
Finally, in step three, the court must dismiss the legal action if the movant
“establishes an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” TCPA § 27.005(d).
“Except as provided by Section 27.006(b), on the filing of a motion under this
section, all discovery in the legal action is suspended until the court has ruled on the
motion to dismiss.” TCPA § 27.003(c). “On a motion by a party . . . and on a
showing of good cause, the court may allow specified and limited discovery relevant
to the motion.” TCPA § 27.006(b). Discovery is “relevant to the motion” “if it seeks
information related to the allegations asserted in the motion.” In re SPEX Grp. US
LLC, No. 05-18-00208-CV, 2018 WL 1312407, at *4 (Tex. App.—Dallas Mar. 14,
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2018, orig. proceeding) (mem. op.). “Some merits-based discovery may also be
relevant, however, to the extent it seeks information to assist the non-movant to meet
its burden to present a prima facie case for each element of the non-movant’s claims
to defeat the motion to dismiss.” Id.The TCPA includes deadlines for filing the motion to dismiss, for a hearing
on the motion, and for the court’s ruling. A motion to dismiss must be filed “not later
than the 60th day after the date of service of the legal action.” Id. § 27.003(b). A
party responding to the motion “shall file the response, if any, not later than seven
days before the date of the hearing.” Id. § 27.003(e). Section 27.004 sets forth the
deadlines for holding a hearing on the motion. If the court allows discovery under
§ 27.006(b), the court may extend the hearing date, “but in no event shall the hearing
occur more than 120 days after” service of the TCPA motion. Id. § 27.004(c). The
court must rule on the motion “not later than the 30th day following the date the
hearing on the motion concludes.” Id. § 27.005(a).
We review de novo the trial court’s ruling on a motion to dismiss under the
TCPA. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018);
Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019,
pet. denied). “In conducting this review, we consider, in the light most favorable to
the non-movant, the pleadings and any supporting and opposing affidavits stating
the facts on which the claim or defense is based.” Dyer, 573 S.W.3d at 424 (internal
quotation omitted); see also TCPA § 27.006(a). “Additionally, a trial court may, but
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is not required to, receive the submission of documentary evidence, including
deposition transcripts.” Gehrke v. Merritt Hawkins & Assocs., LLC,
No. 05-19-00026-CV, 2020 WL 255689, at *2 (Tex. App.—Dallas Jan. 17, 2020,
pet. denied) (mem. op.). However, the plaintiff’s petition is generally “the best and
all-sufficient evidence of the nature of the action.” Hersh, 526 S.W.3d at 467
(internal quotations omitted).
DISCUSSION
1. Sylvester’s issues
Sylvester raises five issues. First, she contends that her statements regarding
Michael’s ethical violations “were based on, relate to,2 or were made to further her
exercise of the right of free speech, the right to associate, or the right to petition,”
and were made “in connection with a matter of public concern.”
Second, Sylvester argues that the trial court erred by disregarding her
discovery responses when considering the scope of claims adequately raised in her
motion to dismiss. Third, Sylvester argues the trial court erred by considering in
response to the motion to dismiss certain testimony, factual allegations, and legal
arguments that were not disclosed by Michael in her initial disclosures.
2
We note that in the Legislature’s 2019 amendments to the TCPA, the words “relates to” were removed
from § 27.003(a). Act of May 17, 2019, 86th Leg., R.S., ch. 378 § 2, 2019 Tex. Gen. Laws 684, 685
(codified at TEX. CIV. PRAC. & REM. CODE § 27.003(a)). We apply the current version of § 27.003(a) in
this opinion. In addition, § 27.003(a) has no provision regarding statements “made to further [a person’s]
exercise of” one of the included rights. See id. TCPA § 27.003(a) addresses legal actions “based on” or “in
response to” a party’s exercise of the rights specified. We will construe Sylvester’s issue to challenge
Michael’s legal action on these statutory grounds. TEX. R. APP. P. 38.1(f) (statement of appellate issue will
be “treated as covering every subsidiary question that is fairly included”).
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Fourth, Sylvester contends that Michael failed to establish, by clear and
specific evidence, a prima facie case for each essential element of her claims.
Sylvester specifically complains that Michael failed to present clear and specific
evidence of damages because the trial court considered evidence that Michael did
not include in her initial disclosures. Therefore, Sylvester contends, “given her
deficient responses to Sylvester’s requests for initial disclosure[,]” there is no
evidence of damages. And fifth, Sylvester argues that she demonstrated by a
preponderance of the evidence that Michael violated the Texas Disciplinary Rules
and did not file this suit within the statute of limitations.
2. Issue 2: Scope of Motion to Dismiss
We first address Sylvester’s second issue—whether the trial court erred in
limiting the motion to dismiss to certain social media posts Michael claimed were
defamatory—because it is instructive to the other issues on appeal. In her second
issue, Sylvester argues that the trial court erred in failing to address all of the factual
claims raised by Michael’s petition, and instead, limiting the scope of the motion to
dismiss to the social media posts. Sylvester argues the trial court should have read
her motion to dismiss in context by considering her discovery responses in
determining “the scope of the TCPA motion including the claims being challenged,
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the facts that support the motion, and the scope [of the] associated legal argument.”3
She contends that even though her TCPA motion omitted mention of Michael’s
alleged ethical violations, her court-ordered discovery responses addressed them.4
The trial court granted Michael’s motion “for expedited specified and limited
discovery” under TCPA § 27.006(b), and also ruled that “the parties shall exchange
initial disclosures” in advance of the hearing on Sylvester’s TCPA motion. Sylvester
contends that her “court-ordered” discovery responses “inform[ed] the trial court of
the bases for the TCPA motion.” In sum, Sylvester argues the trial court erred by
construing the motion to dismiss as addressing only Sylvester’s social media posts,
not Sylvester’s complaints of Michael’s ethical violations. She complains that the
trial court “seems to have ordered the discovery, then ignored it.”
Sylvester’s initial TCPA motion to dismiss was filed on November 13, 2023.
She filed “amended” or “reasserted” TCPA motions on December 13, 2023,
December 14, 2023, and March 6, 2024.5 None of Sylvester’s amended or reasserted
motions included an argument regarding Michael’s alleged ethical violations that
3
Sylvester adds that the trial court erred by “disregarding the deficiencies” in Michael’s responses,
specifically, the failure to disclose the identity of a fact witness and the basis for her damages. We address
this complaint in our discussion of Sylvester’s third issue.
4
Sylvester does not challenge the trial court’s ruling granting discovery under TCPA § 27.006(b). As
we discuss, her appellate complaints are about the use of those responses in the TCPA’s three-step analysis.
See TCPA § 27.005.
5
We express no opinion about the propriety or timeliness of these filings because no such issue has
been presented on appeal.
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Sylvester now asserts on appeal, such as Sylvester’s allegation that “Michael
violated D.R. 1.06.”
After Michael responded, Sylvester filed her reply supporting her TCPA
motion on March 5, 2024. With the reply, she submitted an email that she sent to
Peloton’s “Chief People Officer” Shari Eaton and its Chief Executive Officer Barry
McCarthy on August 16, 2022, entitled “Code of Conduct Concern.” In her
declaration supporting the reply, she stated that she “sent the email attached as
Exhibit 1 to Peloton on August 16, 2022,” but she cited the email only in support of
her new argument that any defamation claim based on it was barred by limitations.
We reject Sylvester’s contention that she adequately raised in her motion to
dismiss whatever factual allegations were addressed in her discovery responses, and
then were omitted from the motion itself. We conclude that allegations omitted from
Sylvester’s TCPA motion are not at issue on appeal. See Undine Tex. LLC v. Ware,
No. 14-19-00777-CV, 2021 WL 5576056, at *6 (Tex. App.—Houston [14th Dist.]
Nov. 30, 2021, pet. denied) (claims based on communications not addressed in
movant’s TCPA motion were not at issue on appeal).
Sylvester also argues the trial court erred in failing to consider in the context
of the TCPA motion certain matters raised for the first time in her reply brief. We
similarly reject her contention because the scope of the TCPA motion is defined by
the matters raised in the original motion itself, and cannot be expanded by including
new issues for the first time in the reply brief. See Bookout v. Shelley,
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No. 02-22-00055-CV, 2022 WL 17173526, at *12 (Tex. App.—Fort Worth Nov. 23,
2022, no pet.) (mem. op.) (trial court did not err in rejecting argument, made for the
first time in TCPA reply brief, that plaintiffs’ defamation claim lacked basis in law);
Edry-TX-II, GP v. CCND-Main ST Shopping Ctr., LP, 683 S.W.3d 450, 458–59
(Tex. App.—Houston [14th Dist.] 2023, pet. denied) (assertion of limitations
defense in TCPA reply brief was not timely).
For these reasons, we overrule Sylvester’s second issue.
3. Issue 1: Sylvester’s initial burden
Sylvester frames her first issue as “whether Sylvester’s statements regarding
[Michael’s] ethical violations were based on . . . her exercise of the right of free
speech, the right to associate, or the right to petition, and whether that exercise was
made in connection with a matter of public concern.” Her argument in support of
this issue is entitled, “Michael violated D.R. 1.06.” Sylvester contends that her report
to Peloton of “Michael’s unethical conduct” was a protected communication under
the TCPA.
Sylvester’s first issue presumes that the TCPA motion effectively sought
dismissal of Michael’s defamation claims based on Sylvester’s email to Peloton
reporting that Michael committed ethical violations. Because we have concluded
that the scope of the motion to dismiss did not include these claims, we need not
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address whether such claims would fall under the TCPA.6 Therefore, we overrule
Sylvester’s first issue.
4. Issue 3: Consideration of affidavit
In her third issue, Sylvester argues the trial court erred by considering the
affidavit of Cassandre Lamarre, a witness who was not disclosed in Michael’s rule
194 disclosures. See TEX. R. CIV. P. 194.2. The trial court ordered the parties to
exchange initial disclosures in its January 18, 2024 order granting Michael’s
discovery motion. The record reflects that Michael had already served her
disclosures on December 13, 2023, and did not amend them to include Lamarre
within the time specified in the trial court’s order.
On March 1, 2024, Michael filed her response to Sylvester’s TCPA motion.
She attached a declaration by Lamarre as Exhibit 4. Lamarre testified that she is a
criminal defense attorney licensed in New Jersey. Sylvester filed a criminal
complaint against Michael in New Jersey in 2023, and Michael was charged with
harassment. Lamarre represented Michael at an initial hearing and reviewed the
evidence produced by the prosecutor. She then conferred with the assigned
prosecutor, who agreed to drop all charges against Michael for lack of evidence. The
prosecutor then dismissed all charges at a subsequent hearing. Lamarre stated that
6
The trial court’s determination that Sylvester satisfied step one of the TCPA analysis with respect to
the social media posts is not challenged by either party on appeal and we need not address its application
any further because we conclude Michael offered clear and specific evidence of her claims and Sylvester
failed to establish an affirmative defense as a matter of law. See Lipsky, 460 S.W.3d at 586–87 (discussing
steps in TCPA analysis).
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“[a]s a result, the court moved for an expedited expungement on [Michael’s] behalf.”
Lamarre also testified that Michael retained her services for a flat fee of $1,700.00,
and this fee was “reasonable considering the time and labor required, the seriousness
of the issues and the results obtained, my experience and ability as an attorney, and
the customary fees charged for similar work in New Jersey.”
By written motion, Sylvester moved to strike Lamarre’s declaration on the
ground that Lamarre was not identified as a fact witness in Michael’s disclosures.
Sylvester then raised the issue at the TCPA hearing, and the trial court overruled the
objection. We review the trial court’s evidentiary ruling for an abuse of discretion.
Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 859 (Tex. App.—Dallas 2006,
no pet.).
At the TCPA hearing, Michael’s counsel responded to Sylvester’s motion to
strike, arguing among other matters that there was no unfair prejudice to Sylvester
under civil procedure rule 193.6.7 See TEX. R. CIV. P. 193.6(a); see also Lopez, 200
S.W.3d at 860 (citing TEX. R. CIV. P. 193.6(a) and explaining that the penalty for
failure to supplement a discovery response is exclusion of the evidence at trial unless
the trial court finds good cause for the failure, or finds that the failure to amend or
supplement the response will not unfairly surprise or unfairly prejudice the other
7
Rule 193.6 provides that a party “may not introduce in evidence . . . material or information that was
not timely disclosed, or offer the testimony of a witness . . . who was not timely identified” in discovery
unless the offering party establishes good cause or the lack of unfair surprise or unfair prejudice. TEX. R.
CIV. P. 193.6. Although Sylvester does not specifically cite rule 193.6 in support of her argument that the
trial court should not have considered evidence not disclosed in discovery, she argues its substance.
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parties). Counsel also contended that even if Lamarre had been disclosed and
Sylvester had obtained evidence to controvert Lamarre’s testimony, under the TCPA
it would be improper for the trial court to weigh the evidence or consider
controverting evidence in determining whether Michael established her prima facie
case under TCPA § 27.005(c).
Sylvester has not cited authority applying the rule of exclusion under rule
193.6(a) to evidence proffered in TCPA proceedings, and we have found none. Rule
193.6 addresses the effect at trial of a failure to timely respond to discovery. In
Lopez, we explained that the purpose of the discovery rules “is to encourage full
discovery of the issues and facts before trial so that parties can make realistic
assessments of their respective positions in order to facilitate settlements and prevent
trial by ambush.” 200 S.W.3d at 860 (Emphasis added).
The TCPA and cases interpreting it, in contrast, make clear that a hearing on
a TCPA motion to dismiss is not a trial on the merits. See, e.g., Stallion Oilfield
Servs. Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 215 (Tex. App.—
Eastland 2019, pet. denied) (“[A] TCPA motion to dismiss is not a trial on the merits
and is not intended to replace either a trial or the summary judgment proceeding
established by the Texas Rules of Civil Procedure.”). The TCPA includes its own
expedited procedures and burdens of proof. Discovery is not permitted at all, unless
the trial court finds good cause for “specified and limited discovery relevant to the
motion.” TCPA § 27.006(b).
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As the supreme court has explained, “[t]he motion to dismiss stage is not a
battle of evidence; it is the clearing of an initial hurdle. The [TCPA] does not select
for plaintiffs certain to succeed; it screens out plaintiffs certain to fail—those who
cannot support their claims with clear and specific evidence.” USA Lending Group,
Inc. v. Winstead, PC, 669 S.W.3d 195, 205 (Tex. 2023) (footnotes omitted). For
purposes of § 27.005(c), evidence is “clear and specific” “if it provides enough detail
to show the factual basis for the claim.” Id. at 200. “Such evidence need not be
conclusive, uncontroverted, or found credible.” Id. We conclude that the trial court
did not abuse its discretion in overruling Sylvester’s objection to Lamarre’s affidavit.
Lopez, 200 S.W.3d at 859. We overrule Sylvester’s third issue.
5. Issue 4: Clear and specific evidence of damages
In her fourth issue, Sylvester makes two arguments to support her complaint
that Michael failed to establish, by clear and specific evidence, that she suffered any
damages. First, she argues that Michael failed to make timely disclosures of the
damages she claims and never supplemented her disclosure responses as required by
the trial court’s order permitting discovery. Again, she contends that where the trial
court has permitted discovery under TCPA § 27.006(b), evidence not disclosed in
that discovery cannot be considered in the TCPA proceedings. For the reasons we
explained in discussing Sylvester’s third issue, we overrule this portion of her fourth
issue.
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Second, Sylvester argues that Michael failed to offer any clear and specific
evidence of her damages. Her challenge is directed to Michael’s claims for business
disparagement and malicious criminal prosecution. She cites Burbage v. Burbage,
447 S.W.3d 249, 262–63 (Tex. 2014),8 in support of her challenge to Michael’s
business disparagement claim. In Burbage, the court reversed the jury’s damages
award in a defamation case where the evidence did not “show actual loss of
reputation, that anyone believed the defamation, [or] that [the plaintiff] suffered an
actual loss.” Id. at 262.
Michael responds that the record9 includes clear and specific evidence of her
damages on each claim placed in issue by Sylvester’s motion. Quoting Elliott, 564
S.W.3d at 847, she also argues that “‘[d]irect evidence of damages is not required,
but the evidence must be sufficient to allow a rational inference that some damages
naturally flowed from the defendant’s conduct.’”
Michael argues:
Here, the record demonstrated at least the following: [Sylvester] made
numerous statements on social media and directly to Peloton (although
the latter were not placed in issue by [Sylvester’s TCPA] motion) in
which she claimed that Ms. Michael harassed her, engaged in
workplace bullying, had advanced in the company through this bullying
8
Michael argues that Burbage is inapposite because (1) it is a case tried to a jury verdict, not involving
the TCPA, (2) the plaintiff in Burbage did not plead a business disparagement claim, and (3) in any event,
Michael’s “testimony that her pay trajectory changed following [Peloton’s] second investigation prompted
by [Sylvester’s] false statements satisfies her burden under the TCPA.”
9
Michael explains that even though the relevant information was blacked out on the copy of her TCPA
response initially filed in the trial court, she supplied opposing counsel and the trial court with an unredacted
copy of the response, including information about her damages, before the hearing on Sylvester’s motion
and before Sylvester’s reply was due. The unredacted copy is included in our supplemental clerk’s record
on appeal.
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and not on her own merit, and that Ms. Michael violated Peloton’s code
of conduct. [Sylvester] made these accusations even after she was no
longer an employee, but shortly before Ms. Michael was set to make an
appearance in criminal court on [Sylvester’s] false charges. The
statements included an email directly to Peloton’s CEO accusing Ms.
Michael of violating workplace rules.
[Sylvester’s] conduct prompted a second workplace investigation of
Ms. Michael and the suggestion by her supervisor that she take time off
from work. The workplace investigation concluded that Ms. Michael
had not done the things [Sylvester] claimed, but that she had
nevertheless violated company policy. One month after that finding,
Ms. Michael’s annual pay adjustment was reduced to below the rate of
inflation, and the increase was less than in years prior. [Record citations
omitted].
Michael concludes that she presented sufficient evidence “to support an
inference that [Sylvester’s] statements injured Ms. Michael in her business,
adversely impacted her pay scale at the company, and caused pecuniary harm,”
citing “roadblocks to career and pay advancement, and reduced trust between Ms.
Michael and her client, Peloton.” We conclude this evidence is “sufficient to allow
a rational inference that some damages naturally flowed” from Sylvester’s conduct.
Elliott, 564 S.W.3d at 847.
Sylvester’s argument regarding damages arising from Michael’s malicious
prosecution claim is a repeat of her challenge to Lamarre’s affidavit; we again reject
that argument here. Further, we note that accusing someone of a crime, as Sylvester
did by making her police report, is an example of defamation per se, a statement that
is “so obviously harmful” that general damages are presumed. Lipsky, 460 S.W.3d
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at 593, 596. Concluding that Michael offered clear and specific evidence that she
suffered damages, we overrule Sylvester’s fourth issue.
6. Issue 5: Affirmative defenses
In her fifth issue, Sylvester contends the trial court erred by denying her TCPA
motion because she established that (1) one of Michael’s claims was barred by
limitations and (2) Sylvester’s statement that Michael violated the Texas
Disciplinary Rules was true. See TCPA § 27.005(d) (court shall dismiss legal action
if moving party establishes an affirmative defense on which it is entitled to judgment
as a matter of law).
Sylvester’s limitations defense is based on alleged statements made in her
August 2022 email to Peloton’s CEO and its Chief People Officer. As we have
discussed, Sylvester did not raise this claim in the original or amended TCPA
motion, but rather, raised it for the first time in the reply brief. In her reply, Sylvester
argued that “one of the defamation claims”—based on the August 2022 email—was
barred by the one-year statute of limitations because Michael did not file suit until
September 20, 2023. She also submitted her declaration stating, “I sent the email
attached as Exhibit 1 to Peloton on August 16, 2022.” Because we have concluded
that the scope of the TCPA motion is limited to claims raised in the motion and is
not extended to issues raised for the first time in the reply brief, we overrule this
portion of Sylvester’s issue. See Bookout, 2022 WL 17173526, at *12; Edry-TX-II,
GP, 683 S.W.3d at 458–59.
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Sylvester next argues she established “[t]he affirmative defense of ‘truth’” by
a preponderance of the evidence. She argues that she established that Michael acted
unethically and violated the disciplinary rules “by advising Sylvester (an employee
of Peloton) to pursue a claim against her client (also Peloton) for selfish reasons
(because Peloton was making Michael’s life difficult).” Sylvester failed to raise this
argument in the trial court and accordingly has waived it. TEX. R. APP. P. 33.1
(preservation of complaint for appellate review).
We conclude that Sylvester did not meet her burden in step three of the TCPA
analysis to conclusively establish an affirmative defense. See TCPA § 27.005(d)
(moving party bears burden to establish affirmative defense); Zidan v. Zidan,
No. 05-20-00786-CV, 2022 WL 17335693, at *6 (Tex. App.—Dallas Nov. 30, 2022,
pet. denied) (mem. op.) (“a TCPA movant relying upon an affirmative defense for
dismissal must conclusively establish that defense”). We overrule Sylvester’s fifth
issue.
CONCLUSION
The trial court’s March 20, 2024 order denying Sylvester’s motion to dismiss
is affirmed.
240360F.P05 /Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAKEDA SYLVESTER, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-24-00360-CV V. Trial Court Cause No. DC-23-16335.
Opinion delivered by Justice
PERRI MICHAEL, Appellee Breedlove. Justices Molberg and
Kennedy participating.
In accordance with this Court’s opinion of this date, the trial court’s March
20, 2024 order denying appellant Makeda Sylvester’s motion to dismiss is
AFFIRMED.
It is ORDERED that appellee Perri Michael recover her costs of this appeal
from appellant Makeda Sylvester.
Judgment entered this 14th day of November, 2024.
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