Affirmed and Memorandum Opinion filed July 9, 2024.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00127

- CV

JEROME KARAM AND JMK5 HOLDINGS, LLC , Appellant s
V. THE AKERS FIRM, PLLC; BROCK AKERS ; CORDT AKERS; DALY & BLACK, P.C.; AND ANDREW DAO , Appelle es

O n Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 22

- CV

- 1147

MEMORANDUM OPINION Appellan ts Jerome Karam and JMK5 H oldings, LLC filed suit against appellees T he Akers Firm , PLLC ; Brock Akers ; Cordt Akers ; Daly & Bla ck , P.C.; and Andrew Dao for defamation and civil conspiracy

. 1 Appel lees filed a motion to dismiss appellant ’ s suit pursuant to the Texas Citizens Participatio n Act (“TCPA”) ;

1 Because they have the same la st name , we will refer to Cordt Aker and Brock Akers b y their first names.2 t he trial court granted appellees ’ motion. In two issues on appeal, appellant s as s e r t that (1) the trial court erred in dismissing their clai ms and (2) the trial cou rt erred in awarding at torney ’ s fees to appellees. Concluding that appellants did not meet their burden under step two o f the TCPA , w e affirm the judg ment as challenged on

a

p p e al

. I. B ACKGROUND
Karam is the founder and owner of JMK5 , which owns and operates multiple properties and busine sses in Galveston County which appellants self

describe as spanning “ millions of square feet

. ” Appellees are the lawye rs and law firms repre se nt ing As h lyn Moore in a suit against Karam and JMK5. According to Moore , Karam approached her while she was exerc ising at World Gym

— one of the business es operated by JMK 5

. Moore knew h im as the owner of the bar she worked at. Karam indicated he wanted to sho w M oor e the massage therapy offices at the gym. Karam walked Moore to a n isolated hallway of mostly

- empty offices . While there, Karam began making “ inappro priate
comments ” to Moore. Karam then led Moore to the cryo

- chamber, instru cting her to get into it. He clo s ed the door and indicated he wanted a surprise when h e opened the door. When he opened it, Karam expressed his disappointment that Moore was still clothed and demanded she take off her clothes. Moore claims she said no , bu t Karam would not step asi d e fro m the door of the cryo

- chamber, which was the only way to exit

. Moore alleges that “ Karam began groping her, outside of her clothing.

. . . pull [ing] out cash and then put [ting] it into Moore ’’ s clothes.

. . . groping Moore i nside of her clothing, ult ima tel y touching her breasts, buttocks , and placing his finger on and around her anus without her consent. ”

Moore met with a detective from the Texas City Police Department and detailed her allegations against Karam

. Based on her description of th e event, the3 Gal v eston C r imin a l Di strict Attorney ’ s Office (DA ’ s O ffice) did not accept charge s and stated there was no need to interview Karam. After the D A ’ s Of fice declined to press charges, Moore made several posts on various social media pla tfor m s accusin g Ka r am of sexually assaultin g h er.
Karam filed suit against Moore for de famation per se, seeking $100 million in damages and an injunction to prevent Moore from publishing further accusations against Karam. Moore retained appellees to represent h er in Kar am ’ s suit. The Aker s firm sen t a letter, signed by Brock A kers, to Karam ’ s counsel , seeking an

“ early and quiet resolution

. ” Attached to the letter was a counterclaim ; appell ees informed Karam that the counterclaim had not yet been filed but “ [we] thought we

w o uld reach out t o you to con sult with Mr. Karam about whether or not he has concerns about how very public all of this will become once it is filed

. ”
Moore later filed an amende d answer that includ ed coun terclaims against Karam and JMK5 , seeki ng $ 1 mil lion in damages and alleg ing cla ims of sexual assault, assault , batter y, negligence, gr oss negligence, and respondeat superio r

. 2
Moore ’ s counterclaim asserted that Karam sexually assaulte d her, that Karam had acted inappropriate ly numerous times against other e mployees , bo th sexually and

non sexua lly , that JMK5 was aware of Karam ’ s conduct and yet did nothing about it

. Then , appellees colle ctively made several public statements related to the

case :

• Cordt gave an int erview with a television news rep ort er , assertin g , in part, that K a ram sexually assaulted Moor e.

• Dao made a post on Instagram summari zing what one of Karam ’ s

2 As appell ants boldly proclai m : “ Karam did not capitulate to th e Def enda nts ’ deman d s[. ] ” The record does not make it clear whether the out

- of

- court negotiations failed or Karam simply refused t o negotiate in the first place

.4 former HR manager ’ s had allegedly told him.

• Dao gave an interview t o The Daily Beast , claimin g , in p art, that

“ Karam sexually ass aul ted our client

. ” B a sed on thes e state ments , appellants filed the presen t suit agains t appellees , alle ging claims of defamation, defamation per se, civil conspiracy to defame, negligence, gross negligence, and business dispar agement

. Appellants later dismissed the claims for neglig ence, gross negligence , and business disparagement, lea ving the claims for defamation, defamation per se, and civil conspiracy to defame. Appellee s filed a motion to dismiss app ellant s ’ suit p u rsuant to the TCPA. The trial c o urt granted th e moti on to dis miss an d awarded attorney ’ s fees

. II. TCPA A NALYSIS
In appellants ’ first issue, they contend the trial court erred in dismissing their claims pursuant to the TCPA. A. Stand ard of r eview and a pplicable l aw

“ The TCPA ’ s purpose is to identify and summari ly dispose of lawsuits designed only to chill First Amendment rights , not to dismiss meritorious lawsuits

. ” In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) ; s ee Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA contemplates an expedited dismissal procedure when a “legal actio n” is “based on or is in response to a par t y ’ s exercise of the right of free speech, right to petition, or right of association [

. ] ” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). The right of free speech an d right to petition are at issu e in this appeal. To a cco mplish this objective, the TCPA provide s a multi

- step process for the dismissal of a “legal action” to which it applies. See Montelongo v. Abrea , 622 S.W.3d 290, 295

– 96 (Tex. 2021). In the first step, t he party filing a motion to d ismiss under the TCPA bea rs the burden to demonstrate that the l e gal action “is based on or is in response to a part y ’ s exercise of the right of free speech, right to petition, or right of association [

. ] ” Tex. Civ. Prac. & Rem.5 Code Ann. §§ 27.003(a), .005 (b). But under the sec on d s tep, the court may not dismiss the acti o n if the nonmovant “establishes by clear and specif ic evidence a prima facie case for each essential element of the claim.” Tex. Civ. Prac. & Rem. Code Ann. § 2 7 .005(c).

“ Prima facie [e vide nce]

. . . is the mini mum quantum o f e vidence necessary to support a rational inference that the allegation o f fact is true.” USA Lending Group, Inc. v. Winstead PC , 669 S.W.3d 195, 200 (Tex. 2023) (internal quotation mark s omitted )

. “ Evidence is ‘ clear an d specific ’ if it prov ides enough detail to show the factual basis for th e claim

. ” I d. Under the third step, the movant can still win dismissal if he establishes “an affirmative defense or other grounds on which the moving p arty is entitled to judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d). In construing the TCPA and determin ing its applicability, we review statutory construction issues de novo. See Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Simila rl y, whether the part ies have met their respectiv e burdens is a question of law that we review de novo

. S ee Dallas Morning News, Inc. v. Hall , 5 7 9 S.W.3d 370, 377 (Tex. 2019). Under the de

- novo standard, we make an “ independent determination and apply the sa me standard used b y the trial court in the fir st instance.” Fawcett v. Grosu , 498 S.W.3d 650, 656 (T ex. App.

— Houston [14th Dist.] 2016, pet. d e nied) ( internal quotation marks omitted). In conducting our review, we view the pleadings and evidence in the lig ht most favor able to the nonmovant. Sanchez v. Striever , 614 S. W.3d 233, 242

– 43 (Tex. App.

— Houston [14th Dist.] 202 0, no pet.) (collecting cases). B. S econd s tep of the TCPA framework Appellants do not dispute that the TCPA applies to this suit. However, u nder the second s t ep o f the analysis, appellants contend they establi she d , with clear and specif ic evidence , a pr ima facie case for each essential eleme n t of the ir claim s

.6 Appellants further argue that appell ees could not establ ish any affirmative defenses
as a matter of l aw

. We n eed not reach the third step of the TC PA because appellants did not establish by cle ar and specif ic evidence a prima facie case f o r each essential element of their claim

. Tex. Civ. Prac. & Rem. Code Ann. § 27 .005(c). 1. D efamation and defa mation per se The elements of defamation are: (1) the defendant published a false statement; (2) that defam ed the plaintiff; (3) with the requisi t e degree of fault regarding the truth of the statement ; and (4) damage s, unless the statement constitu tes defa mation per se

. Bedford v. Spassoff , 520 S.W.3d 90 1, 904 (Tex. 2017) (per curiam). “In a defamation case tha t implicates the [TCPA], pleadings and e vidence that establishes the facts of when, where, and what was said, the defam atory nature of the st atements , and how they damaged the plaintiff should be

su fficient to resist a motion to dismiss under the [TCPA].” Id. ( internal quotation marks omitted). A statement i s considered published when it is communicated to a third person who is capable of under stand i ng its defamatory meaning and in such a way that the person und erst oo d its defamatory meaning. See Exxon Mobil Corp. v. Rincon es , 520 S.W.3d 572, 579 (Tex. 2017)

.
a. K a ram ’ s defamation claim against Cordt A ker Karam ’ s defamati on claim against Cord t is p remised on the following
statements that Cordt made to a news repor ter in response to a media inqui ry regarding the suit filed by Moore against Karam: (1) Karam “ lured ” M oore into an empty area of World Gym; (2) Karam “ gr ope[d] ” Moo re on January 31, 202 2 “ against her will ” ; and (3) Moore was “ powerless ” bec ause Karam, a “ 60

- somethin g year old

- man

. . . blocke d her exit ” during the encounter

. Even though fault is the third elemen t , w e begin by analyzing whether Karam met7 his burden to show prim a facie evidence o n the e lement of fault b ecause it is dispositive in this case

.

“ A pr ivate individual need only prove negligence, whereas a publi c figure or official must prove actual m alice. ” In re Lipsky , 460 S.W.3d at 593

. “ ‘ A ctual malice ’ in this context means that the statem ent was made w ith knowledge of its falsity or w ith reckless d isregard for its truth. ” Id. Under the neglige nce standard , the defendant is negligen t if they “knew or should have known a defa matory
stateme nt was false

. ” D Maga zine Partners, L.P. v. Rosenthal , 529 S.W.3d 4 29, 440 (Tex. 2017)

. We do not ne ed to address whether Karam is a private or public individua l because we conclude that Karam d id no t establish a prima facie case of actual

ma lice or neglig ence regarding Cordt ’ s statements. Karam does not ass ert that Cordt was aware of his state ments being false, but Karam argues that Moore ’ s statements h ad a “ high probability of fal sity, ” and thus Cordt acted with reckless disregard for the truth o f the statements or at least should have known that the
statem ents were false. According to Karam , the evidence ref lects Cordt ’ s negligence /malice in several wa ys. First, Karam cl aims that Moore is a “ pathological liar ” and her allegations of sexual assau lt had a “ high probability of falsity, ” as proven by a Tiktok video she
pos ted in which she lip

- syncs to an audio track of a woman saying , “ I love lying. ” However, this s ocial media post does not e ven raise a scintilla of evidence regarding her propensity to lie or the truthfulness o f her allegations

. Such a video , p osted a year bef ore her allegations of sexual assault , would not make a reaso n abl e attorney doubt the claims of their client , and that is a ssuming th e attorney was eve n aware of the video ’ s existence

. And n othing in the record or pleadings indicates that C ordt was aware of the Tiktok video before he made hi s statement to the public media

.8 Karam next argues that Cordt ’ s negligen ce/malic e was demonstrated by his failure to fully investigate th e contents of Moo re ’ s statements to t he police

. According to Karam , the decision of the D A ’ s Office ’ s to not press charges against Karam should have revealed to Cordt that Moore ’ s allegations wer e false

. However , “ [b] are, baseless opinions d o not create fact que stions, and neither are they a sufficient substitute for the clear a nd specific evidence required to establish a prima facie case u nder the TCPA

. . . . Opinions must be based on demonstrabl e facts and a re a soned basis. ” In re Lipsky , 4 60 S.W. 3d at 592 ( int ernal citations omitted )

. Appellants ’ b are opinion that Cord t faile d to investigate is not supporte d by any facts

. To the contrary , Cordt ’ s statements to the media c losely trac k ed the statements made by M o ore to the police , suggestin g he did inv est igate her
stateme nts

. Also, the investigation performed by Cordt and the other appellees unearthed the fact that other women claimed to have h ad similar experiences with Karam, which would only provide Cordt with mor e reason to believe Moore ’ s assertio ns, no t less. Karam also argues tha t Cordt acted with negligence or ma lic e because the record reflect s that Moore had three motivations for lying. Two of the alleged motivations were only made known through an affidavit

— b y one of Moore ’ s prior

co
- workers

— t hat was submitted af ter Cord t gave his sta tements to the news

. It is uncl ear whethe r Cordt was aware of th ese facts and alleged motivations a t the time he made his sta tem ent

. The affidavit suggest ed that Moore had lost her job at a bar that was indirectly owned by Karam and JMK5 . The co

- worker also averred that Moore had asked for Karam ’ s number and wanted him to be her “ sugar daddy

. ” The third

- alleged motivation Moo re had for lying was the fact that Ka ram had evicted her father, and that Moore ’ s father w a s “ extremely hostile during the eviction. ” But j ust because Moore ’ s father had been evicted by Karam does no t provide a r easonable basis to conclude that Moore made f alse statements and that9 Cordt k new or should have known his statements were fa l se at the time he made them

. See id. Claiming that Cordt knew , or should have known , Moore was lying simply because sh e ost ensibly had a motive to lie is nothing more than a bare

co nclusion. See id. Because we conclude that Kara m failed to provide prima f acie evide nce regarding fault , we conclude trial court did not err in dismi ssing Kar am ’ s defamation suit against Cordt. b. K aram ’ s d efa mation claim against Brock Aker The re is no evidence in the record that Brock ev e r made defamat ory sta tements about Karam or JMK5

. At most, the record shows that Brock signed the
pre suit demand lett er to Kara m and Moore ’ s first am ended answer with counterclaim s , but neither of those wer e published by Brock to a third party. See Rincones , 520 S

. W.3d at 579

. Therefore, the trial court did not e rr in dismissing Karam ’ s def amation claim against Brock.

c. Karam ’ s def a mation claim against th e Aker firm There is also no evidence that the Aker firm itself m ade any defamatory
statement s about Karam. Karam a lleges that Cordt was speaking “ on his fir m ’ s behalf ” when he spoke to the news reporter. But Karam does not offer an y factual support for thi s allegation

. In re Lipsky , 460 S.W. 3 d at 592 ( “ [b] are, baseless opinions d o not create fact questions ” )

. To the c ontrary, the news article associated with the pre ss interv i ew attributed the statements to Cordt in divi dually, not the Aker law firm. Therefore, the trial court did not err in dismissing Karam ’ s d ef amation claim against the Aker firm

. d. JMK 5 ’ s def amation claims against t he Aker appellees , collectively There is no e v idence that any of the Aker appellees ma de any defamatory

s tatements about JMK5 as a business . All the alleged def amatory statements w ere10 about Karam

. Therefor e, the trial court did not err in dismissing JMK5 ’ s def amation claim s against t h e Aker appelle es

.
e. JMK5 and Karam ’ s de f amation claim s against Dao and Daly & Black JMK5 and Karam identi f y two inst ances in which Dao a llegedly defamed them: (1) an Instagram po st and ( 2) an interview with The Daily Beast

. Karam and JMK5 claim that in his I nstagram post, Dao “ affirmatively and independe ntly stated Mr. Karam sexuall y assaulted Ms. Moore, that [Karam] ha d committed multiple previous sexual assaults, and that [ JMK5 ] swept [them] under the rug

. ” But that misrepresents what Dao said in his Insta g ram post : After the sexual assault of our client, one of Jerome Karam ’ s form er Human Resources managers in his com pany reached out to our client. The HR manager indicated she h ad quit because the guilt was killing her, and also indicate d that what our cli e nt described had also previously happ ened to ‘ many other women. ’ The inciden ts were swept under the rug.
A ppellant s have ne ver contested that a former HR ma nager reached out to D a o n or do they challenge the veracity of the alleged statements made by the f o rmer HR
manager

. Thus, regarding the Instagram post, appellants did not pres ent prima facie evidence that Dao ’ s Instagram post constituted a false statement. And for t h e same reasons stated above in analyzing Cordt ’ s alleged fault, appellants ha ve no t demonstrated negligence or malice on Dao ’ s part ; nothing in the record suggests that Dao kn ew or should have k nown that what he was posting was false. Concerning the Dail y Bea st interview, we conclude that appellants have did
not demonstrate prima faci e evidence of fault. The following paragraph appeared in the news article following Dao ’ s interview :

“ In short: Kar am sex ually assaulted our client,” attorney Andrew Dao told T h e Daily Beast, alleging that Karam “has a history” of such misconduct. “Our cli e nt filed a police report and spoke out about it [.] Karam then initiated a lawsuit and sued . . . in an a ttempt to silenc e11 her. After he filed this lawsuit, one of his former H R managers reached out to our client, to essentially say that this misconduct by Karam has gone on for far too long, and that his company has been sweeping it unde r the rug. ” Regarding the second half of the paragraph, appellants have not shown Dao publish e d a false statement fo r the same reasons as those stated above: appellants have not disputed the assertion that one of Karam ’ s former HR managers reached out to D ao. Further, a ppellants have not shown that Dao ’ s claim that Karam “ has a history ” of such se x ual misconduct was a “ false statement. ” The record contains evi dence that befor e Mo ore ’ s allegations in this suit , at least one woman was awarded $100,000 for a ll eging Karam molested her, after she int ervened in the suit of another woman who raised simila r claims against him. The only pote ntially false statement remaining i s “ Karam s e xual ly assaulted our client , ” but o ur analysis a s it applied to Cordt ’ s stateme n ts apply equally here ;

a

ppellants did not establish prima facie evidence that D ao knew or should have known that statement was false. A ppellants present no evidence demonstrat i ng that Dao acted unreasonably in makin g this statem ent or in investigating Moore ’ s claims. Regarding the defamati on claims against Daly & Black , i t is unclea r what de famatory statements the firm allegedly ma de, but to th e extent appellant s ’ clai m s are ba sed on Dao ’ s statements above, we apply the same reasoning to conclude there is no e vidence that Daly & Bl ack acted with negligence or malice in making
any all egedly de f amatory statements. We also note that there is no evidence that Da o was speaki n g on behalf of Daly & Black ; the article attributes the quote to Dao as an in dividual and d o es n o t mention Daly & Black

. Therefore, the trial court did not err in dis missing t he defamation claims against Dao and Daly & Black

. Having concluded that the tr i al court did not err in dismissing all of appel lants ’ defamation claims against appelle es, we next address12 appella nts ’ conspiracy

- to

- defame claims. 2. Conspiracy to De fame The essential elements of a civil conspiracy require that two or more persons have a meeting of the minds to accomplish an unlawful objective and take one or more unlawful , ov ert acts to accomplish the objective. See First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214 , 222 (Tex. 2017); see also Juhl v. Airington , 936 S.W. 2 d 640, 644 (Tex. 1996) (“[C]ivil conspiracy req uires specific intent” to agree “to acco mp lish an unl awful purpose or to accomplish a lawful purpose by unlawful me ans.”). “[ C]i vil conspiracy is not an independent tort

. . . . [it] is a theory of vicarious liability.” Agar Corp., Inc. v. Electro Circui ts Int ’ l, LLC , 580 S.W.3d 136, 140, 142 (Te x . 2019)

. Thus , “ a lawsuit alleging a civil conspiracy that committed some in tenti onal tort is still a ‘ suit for ’ that tort

. ” Id. at 142. As applied to this case , a plaintiff must prove the underlying tort of def amation to est ablish liability on a conspira cy
- to

- defame theo ry. See i d. Because w e have already concluded that appellants did no t establish prima fac ie evidence on every essential element of their defamation claims against appellees , it necessarily follows that a ppellants did not demonstrate by pri ma faci e

ev idence that a ppellees conspired to defame appel lants. See Dallas Symphony Ass ’ n , Inc. v. Reyes , 571 S.W.3d 753, 763 (Tex. 2019) ( “ Without defamation , there can be no co n spiracy to defame

. ” )

. The trial court did not err in dismissing appellants ’ conspira cy
- to

- defame claims against appellees. We overrule appel lants ’ first issue. III. A TTORNEY ’ S F EES In their third issue, appellants argu e that the trial court erred in awarding D a ly & Black $140,000 in attorney ’ s fees relating to the d efamation and conspi racy
- to

- def ame claims , arguing that t he amount was “ unreasonably large. ”13 Appellants d o not challenge the fees awarded to the Aker appellees , to Daly as an individual, Bla c k as an individual, or to any of the appellees rel ated to the dismissed claims of neg l igence, gross negligence, and business disparagement

. If the c ourt orders d ismissal of an y “legal action” under the TCPA, the c ourt “shall award” “court costs, reasonabl e attorney ’ s fees, and other expenses incurred in defending against the legal action a s justice and equity may require.” T ex . C iv

. P rac

. & R em . C ode Ann. § 27.009 (a)

. The amount a t rial court awards under the TCPA is with in the trial court ’ s sound discreti o n. See Sullivan v. Abraham , 488 S.W.3d 294, 2 99 (Tex. 2016)

. Appellants argue that Da ly & Black did not need to research step one of the TCPA analysis so thoro ughly be cause appellant s conceded the suit fell within th e TCPA. However, under these facts, we ca nnot conclude t he t r ial court abused its discretion in awarding a ttorney ’ s fees to a ppellees for research ing a n i ssue on which they bore the burden of proof

. Likewise, appellants complain about the a mount of time Da ly & Black spent researching st ep two of th e TCPA an alysis

. A p pellants assert that because the burden of st ep two falls on ap pellants, appellees ’ rese arch on the topic should have be en “ minimal. ” Howe ver, it was reasonable for appellees t o perf orm step two research to p rovide context regarding the rela tive fault require d

. The parties actively disputed whether Kara m was a private or public figure

. Accordingly, we cannot say the trial court abused its discretion in awarding fees for this area of

re search. A ppellants further complain about the 4.7 hours Da ly & Black bi lled f or amending their initial disclosure s. According to a ppel lants , amending their disclosures “ required essentially no work on the part o f [appellees ’ ] counsel. ” However, based on the record before us re flecting that appel lees did need to amend their disclosures of all persons with relevant facts , we canno t say that the trial court14 abused its discretion in awarding fees related to amending the initial disclosures

. Appellants also b roadly argue that because D aly & Black has expe rtise on TCPA c ases, they should not have needed as much time to prepare for the case . We fi nd this argument unpersuasive. Appe llants do not make any specific argu ments concerning how appellees ’ TCPA e xpertise should have re duced their attorney ’ s fees nor do appellants i dentify any tasks that wer e unre asonable because of their expertise

. Furt her, appellants did not offer a ny specifics as to their position on what

a reasonable amount of time incurred would have be en on this case give n their expertise

. Nor did appellants offer any competing expert testimony. In summary, we con c lude that the tri a l court did not a buse its discretion in its award of rea sonable attorney ’ s fees

. We overrule appellants ’ second issue. IV . C ONCLUSION We affir m the j udgment of the trial court as chall enged on appeal.

/s / Char les A. Spain J usti ce
P a nel consis ts of Justice s Bourliot , Zimmerer , and S pain

.