## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 20

- 00395

- CV

___________________________

On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141

- 31 8628

- 20
Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell 

### M ICHAEL 

### M AGGRET AND 

### T IFFANY 

### M AGGRET 

### , Appellants

V


### . R

AMSEY 

### ’ S 

### R ODS AND 

### R ESTORATION 

### , Appellee2 MEMORANDUM OPINION Michael and Tiffany Maggret appeal the denial of their motion to dismiss a set of defamation and business disparagement claims under the Texas Citizens Participation Act (TCPA). We reverse and remand.
I. B ACKGROUND In September 2019, the Maggrets hired appellee Ramsey’s Rods and Restoration to rebuild a vintage truck. After t he Maggrets explained that they had a limited budget of $30,000 , Ramsey’s set to work

. The first month of the project proceeded smoothly. The Maggrets would order parts and deliver them to the shop, and Ramsey’s would perform restorative work and
then email the Maggrets detailed progress reports. The Magg rets

— and Tiffany in particular

— followed the project with avid interest. Via email, Tiffany requested updates and invoices multiple times, and when those were received, she requested
clarification.
T he project was running well over budget by October , thoug h, e ven with the Maggrets forgoing nonessential repairs. The parties began to dispute what the Maggrets felt were excessive expenses, which brought the project to a halt. A trail of emails
suggest s that the parties eventually resolved their dispute and a greed on a plan, two aspects of which were that Ramsey’s would limit the repairs to only the items necessary to make the truck drivable and that, every two weeks, Ramsey’s would send the3 Maggrets an invoice showing how their funds were being spent. The Ma ggrets resumed making payments in late December, and Ramsey’s restarted work on the truck. However, by February 2020, no invoices were forthcoming. Tiffany requested an invoice multiple times over the next three months, but her requests went unheeded.
Fi nally, Ramsey’s sent an invoice in May. Alarmed by the steep figures in the invoice, the Maggrets instructed Ramsey’s to stop work, and Tiffany came to collect the truck. The Maggrets noticed flaws in the truck’s paint job. The parties disagreed over
wha t caused the flaws

— namely, whether it was Ramsey’s substandard work or the Maggrets’ choice of a lower quality paint job due to budgetary concerns and their hasty removal of the truck from the garage. Regardless, after the project went south, Tiffany poste d multiple negative reviews about Ramsey’s on Yelp 1 and Google in June and July. The reviews critiqued the quality of Ramsey’s work on the paint job and its customer care. Based on the reviews, Ramsey’s sued for defamation and business disparagement. The Maggrets filed a TCPA motion to dismiss, which the trial court denied in November 2020. The Maggrets appeal.
II. D ISCUSSION For expedience, we begin with the Maggrets’ third issue, in which they contend that Ramsey’s failed to carry its burden to offer clear and specific evidence of the fault

1 “Yelp is a website which allows individuals to post reviews of businesses.” Elias v. Pilo , 781 F. App’x 336, 337 n.1 (5th Cir. 2019) (per curiam)

.4 and damage elements of its defamation and business disparagement claims. The Maggrets insist that because there is no evidence that Tiffany was careless about the truth when she maligned Ramsey’s and its work, the TCPA motion should have been granted

. The TCPA prote cts citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). The legislature enacted the TCPA “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.” Tex . Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA employs a three

- step process to determine whether a claim is subject to dismissal. First, under the amended version of the statute, the party invoking the TCPA must “demonstrate[]” that a legal action has b een brought against it that is “based on or is in response to” (1) the party’s exercise of the rights of free speech, petition, or association protected by the TCPA or (2) “the act of a party described by Section 27.010(b).” Id. § 27.005(b). Second, if t he moving party meets its initial burden, then
the onus falls on the nonmoving party to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. Id. § 27.005(c). Third, if the nonmoving party satisf ies that requirement, the burden finally shifts back to the5 moving party to “establish[] an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” Id. § 27.005(d). In determining whether a legal action is subject to or should be dismissed under the TCPA, the court shall consider the pleadings, the evidence a court could consider under Rule 166a, and any supporting and opposing affidavits. Id. § 27.006(a). We
review a trial court’s denial of a TCPA moti on to dismiss de novo. Miller v. Watkins , No. 02

- 20

- 00165

- CV, 2021 WL 924843, at *8 (Tex. App.

— Fort Worth Mar. 11, 2021, no pet.) (mem. op.). We view the pleadings and evidence in the light most favorable to
the nonmovant. Id. The first step is to deter mine the applicability of the TCPA. The Maggrets will have established their initial burden if they show that Ramsey’s suit is based on an act
described in S ection 27.010(b), which includes communicating or posting consumer opinions or ratings and reviews of businesses. Tex. Civ. Prac. & Rem. Code Ann. § 27.010(b)(2). We conclude that the Maggrets have satisfied this burden. As Ramsey’s petition described the basis of its suit, “Defendants have posted the defamatory statements
online and in social media sources.” The Maggrets submitted the full text of the statements in question, which were negative reviews of Ramsey’s business that Tiffany posted to Yelp and Google. In her first post, Tiffany complained about the quality of Ramsey’s paint job an d customer care, urged readers dealing with Ramsey’s to “ [ g

] et6 EVERYTHING in writing,” and accompanied her review with a one

- star rating. 2 In her next post, Tiffany updated her previous review : “we received a threat of lawsuit if
we did not remove our r eviews, picture of letter attached.” And in her final post, she reaffirmed the sentiment she posted in her initial review , stating that the “truck has now been inspected by 4 specialist [ s ] and our attorney. All with the same conclusion the paint job was done incorrectly and of poor quality. We can provide all documents and reports. Pictures of more findings attached[.]” In each of these statements, a consumer critically evaluated her experience with a business and assessed the faults in its services.
These statements represent acts

— posting consumer opinions or reviews of a
business

— that are protected by S ection 27.010(b). Because Ramsey’s suit is based on those acts, we conclude that the Maggrets have satisfied their initial burden under the
TCPA.
The burden therefore shifted to Ramsey’s to establish by clear and specific evidence a prima facie case for each essential element of its claims for defamation and

2 The full text of her first post reads as follows: We had a very bad experience especially in the quality of the paint job and communication. We will be more than happy to share our information with anyone wanting more information and the over 200 emails and pictures we have in communication. Please, please do your research and specifically read reviews, As we are learning many customers after October 2019 during the same time our vehicle was had very similar experiences as we did. Get EVERYTHING in writing if you do choose them to do business with them. pay attention and notice if they don’t sign something!7 business disparagement. Id. § 27.005(c). For the reasons that follow, we conclude that Ramsey ’s has offered insufficient evidence to satisfy that burden with respect to the fault elements of both claims. The circumstances here demanded clear and specific evidence that Tiffany Maggret was negligent, for the defamation claim, and acted with
actual malice, for the business disparagement claim. 3 Ramsey’s provided none. The
TCPA motion thus should have been granted. The TCPA’s undefined terms “clear” and “specific” have been interpreted according to their plain meaning as, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or ‘relating to a particular named thing.’” Lipsky , 460 S.W.3d at 590. “Prima facie case” refers to the “ minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Id. “The torts of defamation and business disparagement are alike in that ‘both
involve harm from the publication of false information.’” Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc. , 603 S.W.3d 409, 417 (Tex. 2020) (quoting Lipsky , 460 S.W.3d at 591). “But there are important differences between the two

. . . .” Id. For one, business disparagement’s “elements are more stringent than those of defamation.”
Id . The elements of defamation include: (1) the defendant published a fa lse statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual, whereas a public figure

3 There is no evidence that Michael posted anything concerning Ramsey’s online.8 or official must prove actual malice); and (4) damages (unless the statement constitutes defamation per se). D Magazine Partners, L.P. v. Rosenthal , 529 S.W.3d 429, 434 (Tex. 2017). To prevail on a business disparagement claim, a plaintiff must establish that (1 ) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff. Lipsky , 460 S.W.3d at 592. Thus, while the mental state for defamation may range as low as negligence, the baseline mental state for bus iness disparagement is the higher state of
actual malice. It is undisputed that Ramsey’s is a private party rather than a public figure or official, and therefore the Maggrets must be held to the negligence standard of fault for defamation purposes

. See G reer v. Abraham , 489 S.W.3d 440, 443 (Tex. 2016) ( deciding
a TCPA case based on the defamation plaintiff’s undisputed status as a public official ). It is also axiomatic that if the nonmoving party cannot establish defamatory negligence,
it cannot establish the higher mental state of actual malice with respect to the same

statements for a business disparagement claim

. See Holden v. Clary , No. CIV. A. 92

- 313, 1992 WL 373145, at *4 (E.D. Va. Sept. 17, 1992) (mem. op.) (“ Since the plaintiff cannot

est ablish negligence on the part of the defendant, it certainly cannot prove that it acted
with actual malice. ”); c f. Sanders v. Herold , 217 S.W.3d 11, 20 (Tex. App.

— Houston [1st Dist.] 2006, no pet.)

. We therefore focus on whether Ramsey’s has offered any e vidence of negligence.9 A defendant is negligent if it “knew or should have known a defamatory statement was false,” unless the content of the false statement would not warn a reasonably prudent person of its defamatory potential. D Magazine , 529 S.W.3d at 440. In the defamation setting, negligence is typified by the “failure to investigate the truth or falsity of a statement before publication, and the failure to act as a reasonably prudent person.” Hoskins v. Fuchs , 517 S.W.3d 834, 843 (Tex. App.

— Fort Worth 2016, pet. denied) (cleaned up). By contrast, a ctual malice means knowledge of, or reckless disregard for, the falsity of a statement ; m ere negligence is not enough

. Bentley v.
Bunton , 94 S.W.3d 561, 59 1 (Tex. 2002). “[I]nherently improbable assertions and statements made on information that is obviously dubious may show actual malice,”
and that which is probative of actual malice tends to show the lesser state of negligence
as well. See id. at 596. As Ramsey’ s sole evidence with respect to negligence, it points to a lengthy series of emails between the Maggrets and Ramsey’s owners and employees. According to Ramsey’s, the email exchange show s that, contrary to Tiffany’s review, Ramsey’s performed quality work and handled the Maggrets’ concerns with care. Thus, by Ramsey’s account , the emails prove that Tiffany knew that her reviews were false and that she was baselessly disparaging Ramsey’s work and customer service

. But falsity is not a silver bullet for fau lt. See ADB Interest, LLC v. Wallace , 606 S.W.3d 413, 431 (Tex. App.

— Houston [1st Dist.] 2020, pet. filed) (“Evidence that the statement is false is not enough.”). Indeed, some errancy must be tolerated

— and the10 speaker held blameless

— in the name of free speech; “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.” KBMT Operating Co., LLC v. Toledo , 492 S.W.3d 710, 716 n.29 ( Tex. 2016) (cleaned up) (quoting N .Y. Times Co. v. Sullivan , 376 U.S. 254, 271

– 72, 84 S. Ct. 710, 721 (1964)). “[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment
protect some erroneou s publications as well as true ones.” Bentley , 94 S.W.3d at 596 (quoting St. Amant v. Thompson , 390 U.S. 727, 732, 88 S. Ct. 1323, 1326 (1968)). It is only when falsity intersects with fault that liability may adhere

. Moreover, to whatever extent that pa tent falsity may be probative of fault, the emails do not show that Tiffany’s statements about the quality of Ramsey’s painting and communication were false in the first place. The emails say nothing about the quality of the paint job, and they show that there were indeed significant communication problems, especially toward the end of the parties’ relationship. For instance, the Maggrets were surprised to learn in October 2019 that the past and future scope of the project had gone well over the parties’ agreed budget, and when the Maggrets voiced their concerns, Ramsey’s promised to deliver “interim invoices” every two weeks detailing the cost of the work that was being performed. Throughout early 2020, the Maggrets requested an interim invoice seven tim es in four months, and at one point, Ramsey’s claimed that it had already emailed one to Tiffany; however, none had in fact been provided. When Ramsey’s did at last deliver an invoice in May 2020 that11 showed worrisome budget numbers, the Maggrets instruct ed Ramsey’s to stop work on the truck. Thus, the emails are hardly the potent evidence of falsity that Ramsey’s hopes for, and to a degree, the content of the emails tends to show the truth of Tiffany’s statement about communication problems. See, e.g. , Infowars, LLC v. Fontaine , No. 03

- 18

- 00614

- CV, 2019 WL 5444400, at *5 (Tex. App.

— Austin Oct. 24, 2019, pet. denied) (mem. op.) (explaining why defamation defendant’s evidence regarding negligence did not assist the party’s TCPA burden ). Moreover, rather th an showing that Tiffany was careless or failed to investigate the basis of her statements, other aspects of the emails suggest that the Maggrets devotedly concerned themselves with the details of the project from beginning to end.
Over the course of dozen s of emails, they demanded progress reports and periodic invoices for all work performed. When there were discrepancies in those reports and invoices, the Maggrets did not hesitate to inquire

. Many emails commemorated the Maggrets ’ calls and visits to th e shop. Indeed, the Maggrets’ avidness for overseeing the restoration project appears to have been partially to blame for the breakdown in their relationship with Ramsey’s. In short, Ramsey’s own evidence shows that the Maggrets were anything but lax in their hunt for information about the project’s quality, cost, and details. Cf. Tex. Jewelers Ass’n v. Glynn , No. 03

- 17

- 00771

- CV, 2018 WL 5305721, at *4

– 5 (Tex. App.

— Austin Oct. 26, 2018, no pet.) (mem. op.) (holding that
declarant’s failure to consult pertinent sources of information supported a negligence finding).12 That trend of attentiveness continued even af ter the parties dissolved their relationship. In her affidavit, Tiffany testified that before she posted her reviews, she hired a technical consultant from the paint’s manufacturer who confirmed that the paint job was handled incorrectly. According to he r last post, she had obtained supporting opinions from other specialists by the time of her final review in July 2020. There was
no evidence that the consultant’s opinions were “obviously dubious,” that Tiffany’s statements based thereon were “inherently improbable,” or of any other circumstance that would allow an inference of negligence to persist in the face of Tiffany’s efforts to verify her statements before making them

. See Bentley , 94 S.W.3d at 596. Ramsey’s offered no evidence of the sort of impru dence that Ramsey’s was required to demonstrate; even viewed in the light most favorable to Ramsey’s, the record shows that Tiffany was not careless about the truth of her statements. See
Hoskins , 517 S.W.3d at 843. We conclude that Ramsey’s failed to of fer clear and specific evidence of negligence. See Te Lun Wang v. Xiangyu Cao , No. 05

- 19

- 00918

- CV, 2020 WL 7296999, at *7 (Tex. App.

— Dallas Dec. 11, 2020, no pet.) (mem. op.) (reversing
denial of TCPA motion due to the defamation claimant’s lack of eviden ce concerning negligence); Novosad v. LSG Vodka LLC , No. 03

- 18

- 00804

- CV, 2020 WL 4726599, at *9 (Tex. App.

— Austin July 31, 2020, no pet.) (mem. op.) (same); Crews v. Galvan , No.
13

- 19

- 00110

- CV, 2019 WL 5076516, at *7 (Tex. App.

— Corpus Christi

– Edinburg Oct. 10, 2019, no pet.) (mem. op.) (same). And if Ramsey’s cannot prove mere negligence13 for defamation purposes, it cannot clear the higher bar of malice concerning the same statements. Thus, its business disparagement claim must fall as well.
For both its c laims, Ramsey’s failed to carry its responsive burden under the TCPA, which requires dismissal. We sustain the Maggrets’ third issue. This renders it unnecessary to consider their remaining issues. 4
III. C ONCLUSION Texas Civil P ractice and R emedies C ode S ection 27.009 mandates that if an action is dismissed under the TCPA, the trial court “ shall award to the moving party court costs and reasonable attorney ’ s fees incurred in defending against the legal
action .” Tex. Civ. Prac. & Rem. Code An n. § 27.009 (a)( 1); Van Der Linden v. Khan , 535 S.W.3d 179, 203 (Tex. App.

— Fort Worth 2017, pet. denied)

. We therefore reverse the trial court’s order denying the TCPA motion and remand for the trial court to consider an appropriate award of court costs an d reasonable attorney’s fees. /s/ Wade Birdwell
Wade Birdwell Justice
Delivered: June 3, 2021

4 Though not assigned as an issue, the Maggrets ’ brief raise s a slew of objections to Ramsey’s evidence. Only one of the objections, however, is adequately briefed, s ee Tex. R. App. P. 38.1(i); J.F. v. J.F. , No. 02

- 19

- 00029

- CV, 2020 WL 4248681, at *2 n.1 (Tex. App.

— Fort Worth July 23, 2020, pet. denied) (mem. op.) , and the subject of that objection is a two

- sentence snippet from an affidavit that plays no role in our resolution
o f this appeal. We therefore do not consider the merits of these objection s . See Miller , 2021 WL 924843, at *9 n.3 ( declining to consider various objections to TCPA affidavits because of inadequate briefing).