## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00369-CV

CHRISTOPHER HOSKINS APPELLANT
V. PERRY FUCHS APPELLEE

---------- FROM THE 153RD DI STRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 153-280594-15

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### OPINION

---------- In two issues, Appellant Christophe r Hoskins appeals an interlocutory order denying his motion to dismiss unde r the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code An n. §§ 27.001–.11 , 51.014(a)(12) (West 2015). We affirm.2 I. Background Appellee Perry Fuchs is a tenured pr ofessor and Interim Department Chair of Psychology at the University of Texas at Arlington (UTA). Hoskins’s girlfriend, Michelle White, was a graduate studen t at UTA and worked for Fuchs. In the early morning hours of Ma y 30, 2015, Hoskins and White had an argument during which Wh ite told Hoskins that she was having a sexual relationship with Fuchs and boasted that she received pr eferential treatment from Fuchs because of their relati onship. White also told Hoskins, who is a student at the Texas A&M University Scho ol of Law, that Fuchs wo uld ruin Hoskins’s career if Hoskins told anyone abou t White and Fuchs’s relationship. Hoskins’s mother, stepfather, brother, and grandmot her overheard the argument. In July 2015, Hoskins filed a complain t with the Office of Equal Opportunity Services (EOS) at UTA alleging th at Fuchs violated UTA Procedure 14-1 1 and UTA Policy 5-511 2 by having a sexual relationsh ip with White, a student and

1 According to Hoskins’s complaint, Proc edure 14-1 provides, in relevant part, “It is the policy of the Un iversity of Texas at Arlington that romantic or sexual relationships between faculty member s and advisor and the students they currently teach, supe rvise[,] or advise and betwee n employees in positions of authority and their subordi nates are prohibited.”

2 Policy 5-511 states, in pertinent part, Consensual relationships in which on e party in a position of direct authority or indirect authority over another with whom he or she has a consensual relationship is consider ed to be a conflict of interest. Therefore, a consensual relations hip between an instructor and a student or between a supervisor and a supervisee is prohibited unless the relationship has been disclosed and any conflict mitigated3 employee over whom Fuchs had direct au thority. Hoskins also alleged that people who work closely with and in th e same environment as Fuchs and White had approached Hoskins with concerns and rumors regarding their behavior and other behavior going on in psyc hology offices and labs. Hoskins further alleged that White had threaten ed Hoskins that Fuchs would ruin Hoskins’s career if he told anyone about the relationship. Hoskins also stated that he had “cont acted [his] current school and they are on guard for any possible retaliation against me or any other student. Considering I have already been threatened a nd [Fuchs’s] position, power, and influence, I request further safeguards to prevent any retalia tion.” In support of his complaint,

as described herein. Where mi tigation is not possible[,] a consensual relationship is prohibited.

. . . . All instructors and supervisors should understand that consensual relationships are of conc ern to the Univer sity and the UT System. It is the instructors and supervisors, who, by virtue of their authority and responsibility, will bear the burden of accountability in such cases. There are substantial risks in an apparently consensual relationship where authority over an other exists, even if the conflict of interest issues are mitigated, in volving potential charges of sexual harassment and/or violations of Univ ersity policy. Such consensual relationships have the potential fo r very serious co nsequences and should be avoided, where possible. . . . Any instructor or superv isor who enters into such a relationship should be aware that liability protection under Texas statutes may not appl y in subsequent acti ons arising out of consensual relationship situations, where the instructor or supervisor failed to comply with this Policy, a nd that failure to comply with this Policy can lead to disciplinary action up to and including dismissal.4 Hoskins filed affidavits fr om his four family members who overheard White’s statements to Hoskins regarding her relationsh ip with Fuchs. Fuchs denied the allega tions in Hoskins’s compla int. As part of its investigation, EOS interviewed White. Wh ite denied having any relationship with Fuchs other than student a nd mentor. White claimed that she and Hoskins had an abusive relationship and that Hoskins often accused her of having a sexual relationship with Fuchs des pite her continued denials . White would bring up Fuchs to “get under . . . Hoskins[’s] skin” or “because she got tired of saying that there was nothing going on.” White also claimed that she had been drinking the night of the argument and th at she did not remember what happened that night. White also claimed that Hosk ins had continued to harass her after their fight. After its investigation, EOS issued a final report. In its findings, EOS detailed Fuchs’s and White’s denials an d stated that even though Hoskins alleged in his complaint t hat people who work closel y with and in the same environment as Fuchs and White had ap proached Hoskins with concerns and rumors regarding their behavior and othe r behavior going on in psychology offices and labs, Hoskins failed to name anyone who co uld confirm his allegations. EOS also found that even though Hoskins provided notarized statements from family members who ov erheard White say that she was in a sexual relationship with Fuchs and threaten that she and Fuchs would ruin Hoskins’s career, none of the witnesses were in the room and none of them described what was being said by Hoski ns. EOS conclude d that there was5 “insufficient evidence to su bstantiate a violation of the University’s consensual relationship policy” and recommen ded that no action be taken. In August 2015, Fuchs sued Hoskin s for defamation based upon the statements Hoskins made about Fuchs in the EOS complaint. Hoskins timely filed a motion to dismiss under chapter 27 of the civil practice and remedies code. In addition to asking that Fuch s’s lawsuit be dismisse d, Hoskins requested sanctions, reasonable attorney’s fees, and costs. After a hear ing at which both sides presented argument, the trial court signed an order denying Hoskins’s motion to dismiss. Ho skins has appealed. II. The TCPA The TCPA protects citizens from retaliato ry 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 le gislature enacted t he TCPA “to encourage and safeguard the constituti onal 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 [persons] to file meritorious lawsuits for dem onstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. “The TCPA’s purpose is to id entify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.” Lipsky , 460 S.W.3d at 589 (c iting Tex. Civ. Prac . & Rem. Code Ann. § 27.002).6 When a plaintiff’s claim implicates a defendant’s exercise of First Amendment rights, chapter 27 allows the defendant to move for dismissal. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); Andrews Cty. v. Sierra Club , 463 S.W.3d 867, 867 (Tex. 2015). Under the TCPA’s two-step dismissal process, the initial burden is on the defe ndant to show by a preponderance of the evidence that the plaintiff’s claim “is based on, relates to, or is in response to the [defendant’s] exercise of” the right of free speech, the right to petition, or the right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the defendant satisfies this burden, the bu rden shifts to the plainti ff to establish “by clear and specific evidence a prima facie [3] case for each essential element of the claim in question.” Id. § 27.005(c). If the plaintiff meet s this burden, the trial court must deny the motion to dismiss even though the plaintiff’s claim implicates the defendant’s exercise of his First Amendment rights. See id. ; Hand v. Hughey , No. 02-15-00239-CV, 2016 WL 1470188, at *3 (Tex. App.—Fort Worth Apr. 14, 2016, no pet.) (mem. op.). The clear and specific standard “nei ther imposes a heightened evidentiary burden nor categorically rejects the us e of circumstantia l evidence when determining the plaintiff’s prima-fa cie-case burden under the Act.” Andrews Cty. , 463 S.W.3d at 867; see Lipsky , 460 S.W.3d at 591 (“In a defamation case that implicates [chapter 27], pl eadings and evidence that establish[ ] the facts of

3 “Prima facie case” mean s the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Lipsky , 460 S.W.3d at 590.7 when, where, and wh at was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficien t to resist a TCPA motion to dismiss.”). In determining whether the clear and specific standard has been met, a trial court must consider the pleadings and evidence th at explain “the facts on which the liability . . . is based.” Tex. Civ. Prac. & Rem. Co de Ann. § 27.006(a);

see United Food & Commercial Workers In t’l Union v. Wal–Mart Stores, Inc. , 430 S.W.3d 508, 511–12 (Tex. App.—Fort Worth 2014, no pet.). III. Discussion In his first issue, Hoskins argues that the trial court erred by denying his motion to dismiss because (1) he showed by a preponderance of the evidence that Fuchs’s claims are based on, relate to, or were file d in response to Hoskins’s exercise of his right of free speech, right to petition, and right of association and (2) Fuchs failed to prove each element of his defamation cl aim by clear and specific evidence. In his second issue, Hoskins contends th at we should remand this case to the trial court for an award of court costs, attorney’s fees, expenses, and sanctions. See Tex. Civ. Prac. & Rem. Code Ann § 27.009(a). 4

4 If the trial court grants a motion to dismiss under the TCPA, it is required to award the moving party: (1) court costs, reasonable atto rney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and8 We review the trial court’s ruling de novo. See United Food & Commercial Workers Int’l Union , 430 S.W.3d at 511. Because it is dispositive of the appeal, we will first address the second part of Hoskins’s first issue—whether Fuchs proved each element of his defamation claim by clear and specific evidence. A. Applicable law Defamation expressed in written or graph ic form is libel. Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011). To prevail on a defamation claim, the plaintiff must prove that the defendant (1) published a false statement of fact to a third party, (2) that was defa matory concerning the plaint iff, (3) with the requisite degree of fault, and (4) dama ges, in some cases. Lipsky , 460 S.W.3d at 593. A statement is defamatory if the words tend to injure the plaintiff’s reputation, exposing him to hatred, cont empt, ridicule, or financial injury, or if it tends to impeach the person’s honesty, integrity, or virtue. Tex. Civ. Prac. & Rem. Code Ann. § 73.001. Whether a publication is false and de famatory depe nds upon a reasonable person’s perception of the entire publication. Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 115 (Tex. 2000 ). We construe an alleged defamatory statement “as a whole in li ght of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.” New Times,

(2) sanctions against the party who brought the legal action as the court determines sufficient to dete r the party who brought the legal action from bringing similar acti ons described in this chapter. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a).9 Inc. v. Isaacks , 146 S.W.3d 144, 15 4 (Tex. 2004) (quoting Turner , 38 S.W.3d at 114). To qualify as defamatory, a stat ement should be dero gatory, degrading, somewhat shocking, and contain elements of disgrace. Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 356 (Tex. App.—Houston [1st Dist.] 2013 , pet. denied). But a comm unication that is merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff’s feelings, is not actionable. Id. Moreover, to be actionable, a statement must assert an objectively verifiable fact rather than an opinion. Bentley v. Bunton , 94 S.W.3d 561, 580–81 (Tex. 2002). “We classify a statement as fact or opinion based on th e statement’s verifiability and t he entire context in which the statement was made.” Am. Heritage Capita l, LP v. Gonzalez , 436 S.W.3d 865, 875 (Tex. App.—Dallas 2014, no pet.). B. Evidence of false defamatory statements Fuchs produced clear and specific ev idence to show a prima facie case that Hoskins made false, defamatory statements of fact in his EOS complaint. 5 Specifically, Hoskins stated in the complaint that Fuchs was having a sexual relationship with White and that Fuchs would ruin Hoskins’s career if he told

5 Hoskins asserts that his repetition of the statements made in his EOS complaint in this lawsui t is not actionable. See generally , James v. Brown , 637 S.W.2d 914, 916 (Tex. 1982) (“Com munications in the due course of a judicial proceeding will not se rve as the basis of a civil ac tion for libel or slander, regardless of the negligence or malice with which they are made.”). However, he does not mention judicial-proceedings immu nity with regard to his statements in the EOS complaint or explain whether that doctrine could apply as a defense in this case.10 anyone about the relationship . Not only do these statem ents assert objectively verifiable facts, but Fuchs pr oduced evidence that they we re false. In support of his response to Hoskins’s motion to dismiss, Fuchs attached EOS’s final report, which stated, among other things, that both he and White denied having a sexual relationship. Fuchs also a ttached his affidavi t in which he averred that he had never engaged in a sexual re lationship with White or any other student and that he had never met, spoken to, or threat ened Hoskins in any manner, either directly or indirectly. When Hoskins’s statements in his EO S complaint are construed as a whole and in light of the surrounding ci rcumstances based upon how a person of ordinary intelligence woul d perceive them, they can be reasonably construed as defamatory. See Tex. Civ. Prac. & Re m. Code Ann. § 73.001; Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. , 219 S.W.3d 563, 580 (Tex. App.—Austin 2007, pets. denied) (op. on reh’g) (“Under Texas law, a statement is defamatory if it tends to injure a person ’s reputation and thereby expose the person to public hatred, cont empt, ridicule, or financial injury or to impeach any person’s honesty, in tegrity, virtue, or reputation.”). At the very least, Hoskins’s statements tended to injure Fuchs’s re putation, had the potential to inflict financial injury on Fuch s, and impeached his integrity and reputation. Accordingly, we conclude that Fuchs pr esented clear and spec ific evidence to make a prima facie case t hat Hoskins’s statements we re false and defamatory.11 C. Fault If a plaintiff in a defamation action is a public official or public figure, the plaintiff must show the defe ndant acted with actual ma lice regarding the truth of the statement. Lipsky , 460 S.W.3d at 593. If the plaintiff is a private figure, he need only show that the defendant was negligent. Id. Hoskins and Fuchs conceded in the trial court and ma intain on appeal that Fuchs is a public figure or public official. However, whether a plaintiff is a public official or a public figure is a question of law. Klentzman v. Brady , 312 S.W.3d 886, 904 (Tex. App.—Houston [1 st Dist.] 2009, no pet.) (citing Rosenblatt v. Baer , 383 U.S. 75, 88, 86 S. Ct. 669, 677 (1966)); HBO v. Harrison , 983 S.W.2d 31, 36–37 (Tex. App.—Houst on [14th Dist.] 1998, no. pe t.). Parties may not judicially admit a question of law. H.E. Butt Grocery Co. v. Pais , 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no pet.). Nor ca n they concede a question of law necessary to the pr oper disposition of an appeal. Jackson Hotel Corp. v. Wichita Cty. Appraisal Dist. , 980 S.W.2d 879, 881 n.3 (Tex. App.—Fort Worth 1998, no pet.); Haas v. Voigt , 940 S.W.2d 198, 201 n.1 (Tex. App.—San Antonio 1996, writ denied) (citing White v. Moore , 760 S.W.2d 242, 243 (Tex. 1988)). Thus, in the course of our de novo review we must determine whether Fuchs was a public figur e or public official. Even though Fuchs is employed by UT A, a public university, not all governmental employees qualify as public o fficials, and there is no specific test for determining whether an individual is a public official for purposes of a12 defamation action. Cloud v. McKinney , 228 S.W.3d 326, 339 (Tex. App.—Austin 2007, no pet.) (op. on reh’g) (citing Harrison , 983 S.W.2d at 36). However, public official status applies to governmental em ployees “at the very least . . . who have, or appear to the public to have, substantial responsibilit y for or control over the conduct of governme ntal affairs.” Harrison , 983 S.W.2d at 36 (quoting Rosenblatt , 383 U.S. at 85, 86 S. C t. at 676). An employee holding an office of “such apparent importance that the public has an independen t interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and perform ance of all government employees,” is a public official for defamation purposes. Id. (quoting Rosenblatt , 383 U.S. at 86, 86 S. Ct. at 676); see Cloud , 228 S.W.3d at 339–40. For purposes of defamation liability, ther e are two classes of public figures: (1) general-purpose public figures, wh o are individuals wh o “achieve such pervasive fame or notoriety that [they] become[ ] . . . public figure[s] for all purposes and in all contexts”; and (2) limited-purpose public figures, who are persons who “thrust themselves to the forefront of parti cular public controversies in order to influence the resolution of the issues involved . . . invit[ing] attention and comment”; who voluntarily “inject[ ] [themselves] or [a re] drawn into a particular public controversy . . . assum[ing] sp ecial prominence in the resolution of public questions”; and w ho “thrust [themselves] into the vortex of [a] public issue . . . [or] engage the public’s att ention in an attempt to influence its13 outcome.” Klentzman , 312 S.W.3d at 904 (quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323, 345, 351, 352, 94 S. Ct. 2997, 30 09, 3012, 3013 (1974)). General purpose public fi gures have assumed so prominent a role in the affairs of society that they have become celebrities. See WFAA–TV v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998), cert. denied , 526 U.S. 1051 (1999). Absent cl ear evidence of general fame or notoriety and pervasive involvement in the affairs of society, one should not be characterized as a general purpose public figure. Gertz , 418 U.S. at 352, 94 S. Ct. at 3013; McLemore , 978 S.W.2d at 571. To determine whether a person is a limited-purpose public figure, Texas courts apply a three-part test: (1) the controversy at issu e must be public both in the sense that people are discussing it an d in the sense that people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2) the plaintiff mu st have more than a trivial or tangential role in the controversy; and (3) the alleged defamati on must be germane to the plaintiff’s participation in th e controversy. McLemore , 978 S.W.2d at 571. To determine if the plaintiff’s role in the controversy was more than ta ngential, a court examines whether the plaintiff (1) actually sought co ntroversy, (2) had ac cess to the media, and (3) voluntarily engaged in activities that necessarily involved the risk of increased exposure and injury to reputation. Klentzman , 312 S.W.3d at 905 (citing McLemore , 978 S.W.2d at 572–73).14 Both Hoskins and Fuchs rely on El Paso Times, Inc. v. Trexler , 447 S.W.2d 403 (Tex. 1969), in support of their contention that Fuchs is a public official or public figure. In that case, the trial court fo und as a matter of law that Trexler—a professor at the University of Texas at El Paso who led an antiVietnam war demonstration that “aroused a considerable amount of interest and comment in the City of El Paso” and resulted in the El Paso Times publishing several articles, editorials, and letters to the editor responding to Trexler and his views—was a public figure. Id. at 404. The issues on appeal, however, were whether the trial court subm itted the correct definition of “actual malice” in the jury charge and whether there was evidence to support a jury finding of actual malice under the correct defini tion, not the trial court’s finding that Trexler was a public figure. Id. at 404–06. Thus, Trexler is not dispositive of the question of whether Fuchs is a public figure. Moreover, there is no evidence to in dicate that Fuchs’s actions—unlike Trexler’s—generated any “amount of interest and comment” from the public. The evidence in the record only establishes t hat Fuchs is a tenured professor and the Interim Department Chair of Psychology at UTA. Under the law as set out above, this evidence is insu fficient to show that Fuchs is a public official, a public figure, or a limited-purpose public figure. Fuchs is therefore a private figure. As a private figure, Fuch s was required to prove that Hoskins was at least negligent in making the statements. See Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W.3d 71, 82, 85 (Tex. App.—Houston [1st15 Dist.] 2013, pet. denied). “Texas courts have defined negligence in the defamation context as the ‘failure to invest igate the truth or fa lsity of a statement before publication, and [the] failure to ac t as a reasonably pr udent [person].’” Id. at 85 (quoting Marathon Oil Co . v. Salazar , 682 S.W.2d 624, 631 (Tex. App.— Houston [1st Dist.] 1984, writ ref’d n.r.e.)). According to Hoskins, White went on a “rant” during their argument and “screamed” that she and Fuchs were having a sexual relationship and that Fuchs would ruin Hoskins’s career if Hoskins told anyone. There is no evidenc e that Hoskins investigated the truth or falsity of these accusations, even thou gh White—who had so much to drink that night that she could not later remember what ha ppened—screamed thes e statements in the heat of an argument at 2:30 a.m. We theref ore conclude that Fuchs presented clear and specific evidence to make a prima facie case that Hoskins was negligent regarding the truth of the statements made in the EOS complaint. 6 D. Damages Finally, when an offending publicatio n qualifies as defamation per se, a plaintiff may recover general damages wi thout proof of any specific loss. Lipsky , 460 S.W.3d at 596. This is because defa mation per se refers to statements that

6 Hoskins asserts that he was merely re peating White’s statements. “Under Texas law, a person who re peats a defamatory statem ent made initially by another can be held re sponsible for republishing the libelous statement.” Milo v. Martin , 311 S.W.3d 210, 214 (Tex. Ap p.—Beaumont 2010, no pet.); see also Neely v. Wilson , 418 S.W.3d 52, 61 (Tex. 2013) (“We first observe that it is a well-settled legal principle that one is liable for republishing the defamatory statement of another.”).16 are so obviously harmful th at general damages, such as mental anguish and loss of reputation, are presumed. Id. Defamation is actionable per se if it injures a person in his office, business, profession, or occupation. Morrill v. Cisek , 226 S.W.3d 545, 549 (Tex . App.—Houston [1st Dis t.] 2006, no pet.). As explained above, Hoskins’s statements tended to inju re Fuchs’s reputation, had the potential to inflict financial injury on Fuchs, and impeach ed his integrity and reputation. Thus, as defamation per se, damages to Fuchs’s reputation are presumed, although the presumption alone will support only an award of nominal damages. See Lipsky , 460 S.W.3d at 596. Accordingly, we hold that Fuchs met his burden to establish by clear and specific evidence a prima fa cie case for each essential element of his defamation claim. 7 See Tex. Civ. Prac. Rem. Code § 27 .005(c). Because Fuchs satisfied his burden, we do not address the first pa rt of Hoskins’s first issue because even assuming that he established by a prepo nderance of the evidence that Fuchs’s claims are based on, relate to, or were file d in response to Hoskins’s exercise of the right of free speech, the right to petition , and the right of asso ciation, denial of Hoskins’s motion to dismiss was nonetheless required. See id. ; see also Tex. R.

7 Although Fuchs pled defamation and defamation per se as separate claims, they are not separ ate causes of action. See Levine v. Steve Scharn Custom Homes, Inc. , 448 S.W.3d 637, 650 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (“Defamation per se and def amation per quod are not separate causes of action, however. ‘[T]he distinct ion between them inst ead is based on a rule of evidence, the differ ence between them lying in the proof of the resulting injury.’” (quoting Downing v. Burns , 348 S.W.3d 415, 425 (Tex. App.—Houston [14th Dist.] 2011, no pet.))).17 App. P. 47.1. Thus, the trial court did not err by denying Hoskins’s motion to dismiss, and we overrule th e dispositive portion of Hoski ns’s first issue. Because Hoskins’s second issue is contingent upon his first issue being sustained, we do not reach his second issue. 8 See Tex. R. App. P. 47.1. IV. Conclusion Having overruled the dispositive portion of Hoskins’s first issue, we affirm the trial court’s order denying his motion to dismiss.

8 Hoskins implies in his reply brief that the trial court sh ould have dismissed Fuchs’s defamation claim pursuant to se ction 27.005(d) beca use even if his statements were de famatory, Hoskins established by a preponderance of the evidence that his statements were true or substantially true wh en he made them. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d) (“Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establis hes by a preponderanc e of the evidence each essential element of a valid def ense to the nonmovant’s claim.”); § 73.005(a) (West Supp. 2016) (“The truth of a statement in the publication on which an action for libel is ba sed is a defense to the action” ). In his brief on the merits, Hoskins discusses his belief that his statements we re true or substantially true at the time he filed the EOS complaint in the co ntext of whether he acted with actual malice—which, as explained above, is not requir ed to establish a defamation claim involving a private fi gure—but he does not discuss the applicability of section 27.00 5(d) until his reply brief. A reply brief may not be utilized to raise issues not asserted in a party’s brief on the merits. See Tex. R. App. P. 38.3; Rollins v. Denton Cty. , No. 02-14-00312-CV, 20 15 WL 7817357, at *2 n.6 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.). Further, Hoskins did not raise this argument in the trial court. He pled in his answer that he was not liable for defamat ion because the statements were true and asserted in his motion to dismiss that “truth is an absolute de fense to a defamation cause of action,” but he did not argue that th e suit should be dismissed because he established this defense by a pr eponderance of the evidence. See Tex. R. App. P. 33.1(a).18 /s/ Anne Gardner ANNE GARDNER JUSTICE PANEL: GARDNER, WA LKER, and MEIER, JJ. WALKER, J., filed a dissenting opinion. DELIVERED: Dece mber 22, 2016