Affirmed and Opinion Filed July 1, 2014 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00892-CV AMERICAN HERITAGE CAPITAL, LP, Appellant/Cross-Appellee V. ALAN GONZALEZ, Appellee, and DI NAH GONZALEZ, Cross-Appellant On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-13741


### OPINION Before Justices FitzGerald, Francis, and Fillmore Opinion by Justice FitzGerald American Heritage Capital, LP sued Al an and Dinah Gonzalez for defamation and tortious interference with pros pective business relationships. AHC nonsuited its claims against Dinah. The trial judge dismissed AHC’s claims against Alan based on Alan’s motion to dismiss under the Citizens Participation Ac t, Chapter 27 of the Texas Civ il Practice and Remedies Code. The judge later awarded Alan attorneys’ fees and a $15,000 sanction. AHC appeals. Dinah cross-appeals the trial judge’s failure to hold a hearing on her motion to dismiss under Chapter 27. We affirm the judgment.
I. B ACKGROUND AHC alleged the following facts in its live pl eading. AHC is an online mortgage lender. Dinah contacted AHC in August 2011 about obtaini ng a home loan. According to AHC, Dinahmisrepresented certain information in her applic ation and delayed in providing certain required information and documentation to AHC, delaying the process. AHC’s loan commitment to Dinah expired on October 14, 2011, before Dinah and the seller of the house in question could close the sale. After that date, AHC informed Di nah that it would not be able to fund the loan because AHC had not received all necessary documen ts and information from her. Defamatory statements about AHC began to appear on several websites. AHC sued Dinah for defamation and tortio us interference on October 27, 2011. Dinah filed a motion to dismiss the case based on the r ecently enacted Chapter 27 of the civil practice and remedies code. Chapter 27 creates an early-dismissal mech anism intended to “encourage and safeguard the constitutional rights of persons to petition, speak fr eely, associate freely, and otherwise participate in government to the maximum extent permitted by law” while simultaneously protecting the rights of persons with meritorious claims. See T EX
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. C ODE A NN . § 27.002 (West Supp. 2013). Statutes like Chapter 27 are commonly known as “antiSLAPP statutes” because they are intended to curb “strategic lawsuits against public participation.” See generally Dena M. Richardson, Comment, Power Play: An Examination of Texas’s Anti-SLAPP Statute and Its Protection of Free Speech Through Accelerated Dismissal , 45 S T
. M ARY ’ S L.J. 245, 246–48, 252–55 (2014) (discussing the rise of anti-SLAPP legislation). In her motion to dismiss, Dinah asserted th at her husband Alan had posted the internet statements in question. AHC then filed its firs t amended petition adding Alan as a defendant. Alan filed his own motion to dismiss under Chap ter 27. AHC nonsuited its claims against Dinah soon thereafter. On March 5, 2012, the trial judge held a heari ng on Alan’s motion to dismiss. On March 6, the judge signed an order gran ting the motion to dismiss and se tting a hearing for March 9 todetermine the amount of damages and costs to be awarded against AHC. That hearing was postponed to March 30, and it took place over three separate days (March 30, April 5, and April 13). On April 14, 2012, the judge signed a judg ment awarding Alan atto rneys’ fees of $15,616, plus additional amounts as conditional a ppellate fees, and a sanction of $15,000. AHC filed a request for findings of fact a nd conclusions of law on May 3 and a motion for new trial on May 11. The judge signed findings of fact and conclusions of law on June 5. AHC filed its notice of appeal on June 11. Di nah filed a notice of cr oss-appeal on June 25. AHC has filed a motion to dismiss Dina h’s cross-appeal as untimely filed.
II. A PPELLATE J URISDICTION AHC raises two arguments that challenge our jurisdiction over this appeal. First, in AHC’s second issue on appeal, AHC argues that the March 6 order granting Alan’s motion to dismiss was a final judgment and that the April 14 final judgment is therefore void because it was signed after the trial judge had lost plenary pow er. If AHC is correct that the March 6 order was a final judgment, it necessarily follows that AHC’s and Dinah’s notices of appeal were untimely filed, and we must dismiss the appeal. Second, in its motion to dismiss Dinah’s crossappeal, AHC argues that Dinah’s notice of appeal was untimely in any event because her noticeof-appeal deadline began to run either on Ja nuary 18, 2012, when her motion to dismiss was supposedly denied by operation of law, or on January 30, when the trial judge signed the order granting AHC’s nonsuit of its claims against Dinah. A. Jurisdiction over the appeal as a whole Appellate jurisdiction is never presumed; if the record does not affirmatively demonstrate that appellate jurisdiction is prope r, the appeal must be dismissed. Brashear v. Victoria Gardens of McKinney, L.L.C. , 302 S.W.3d 542, 546 (Tex. App.—Dalla s 2009, no pet.). A timely notice of appeal is a jurisdictional prerequisite. Raulston v. Progressive Ins. Co. , 115 S.W.3d 803, 804(Tex. App.—Dallas 2003, no pet.) (per curiam). Ge nerally, the notice of appeal is due thirty days after the judgment is signed if the time is not extended by the timely filing of certain postjudgment documents. See T EX
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. P. 26.1(a). The general rule, which governs AHC’s appeal in this case, is that an appeal may be taken only from a final judgment. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for purposes of a ppeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.” Id . (footnote omitted). If, as in this case, there ha s not been a conventiona l trial on the merits, we do not presume that a judgment is final. See id . at 199–200. “[A]n order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally dispos es of all claims and all parties.” Id . at 205. There must be a “clear indication that the trial court intende d the order to completely dispose of the entire
case.” Id .; accord Straza v. Friedman, Driegert & Hsueh, L.L.C. , 124 S.W.3d 404, 406 (Tex. App.—Dallas 2003, pet. denied). If there is any doubt as to a judgment’s finality, the question must be resolved by determining the trial court’s intention as gathered from the language of the order and the record as a whole, “‘aided on occasion by the conduct of the parties.’” Vaughn v.
Drennon , 324 S.W.3d 560, 563 (Tex. 2010) (per curiam) (quoting Lehmann , 39 S.W.3d at 203). “The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.” Lehmann , 39 S.W.3d at 200. The pertinent facts follow. AHC’s live pleadi ng included claims against both Dinah and Alan. Dinah and Alan did not f ile answers; instead they each filed a motion to dismiss under Chapter 27. In their motions, Dinah and Alan s ought not only dismissal of the action but also court costs, attorneys’ fees, expenses, and sanctions. On January 30, 2012, the trial judge granted AHC’s partial nonsuit and dismissed AHC’ s claims against Dinah. After hearing Alan’smotion to dismiss on March 5, the trial judge si gned the March 6 order, reciting that Alan’s motion to dismiss “is hereby gran ted and this action is dismi ss[ed] against Defendant, Alan Gonzalez, with prejudice to its re filing.” The order did not dispos e of Alan’s request for costs, fees, and sanctions. To the contrary, in the last paragraph of the March 6 order, the judge set a hearing on March 9 “to determine the damages and costs to be awarded Defendant, Alan Gonzalez, pursuant to § 27.009 of the Texas Civ il Practice and Remedies Code.” The word “final” does not appear in the order, nor does the or der contain a statement that it finally disposes of all claims and all parties. Further, the pa rties and the trial judge did not treat the March 6 order as a final judgment because they continued to litigate the case more than thirty days after the signing of that order wit hout the filing of a deadline-exte nding motion under Texas Rule of Civil Procedure 329b. Indeed, on March 26 the tria l judge signed an order setting the case for trial in October 2012. The March 6 order does not appear to be a final judgment under Lehmann . It does not contain a clear indication that the trial judge intended it to dispose of the whole case, see Lehmann , 39 S.W.3d at 205, nor is such an intent “ unequivocally expressed in the words of the order itself,” id . at 200. Although the order dismisses AHC’s action against Ala n, it also sets a future hearing to determine the “damages and costs” to be awarded to Alan “pursuant to § 27.009.” “Damages and Costs” is the title of section 27.009, and the phrase encompasses not only court costs but also attorneys’ fees and sanctions. T EX
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. § 27.009(a)(1)–(2) (West Supp. 2013). Thus, the order indicates that the tr ial judge intended for it not to dispose of the entire case, which tends to show th at it is not a final judgment under Lehmann . This case is comparable to Interhealth, Inc. v. Insite Clinical Research, LLC , No. 05- 09-00305-CV, 2009 WL 2581867 (Tex. App.—Dallas Aug. 24, 2009, no pet.) (per curiam) (mem. op.). In that case we were confronted with judgment that contained a handwrittennotation that “[t]he issue of whet her an award of attorney’s fees is equitable and just remains pending.” Id . at *1. We held that the continued pendenc y of the claim for a ttorneys’ fees made the judgment interlocutory and not appealable. Id . In the instant case, the judge’s statement of intent to take up Alan’s request for attorneys’ f ees and sanctions at a future hearing would seem to render the March 6 order interlocutory. AHC argues that a pending motion for sanctions , like Alan’s motion for costs, fees, and sanctions under section 27.009, does not affect the fi nality of an order th at would otherwise be final. See Mantri v. Bergman , 153 S.W.3d 715, 717 (Tex. A pp.—Dallas 2005, pet. denied) (“Unlike a pending cause of action, a pending motion for sanctions does not make interlocutory an otherwise-final judgment.”); see also Lane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 312 (Tex. 2000) (“[W]e agree that a judgment does not have to resolve pending sanctions issues to be final . . . .”). But mo re recent authority from the Texas Supreme Court contradicts AHC’s position. In Crites v. Collins , the court stated, “A judgment dismissing all of a plaintiff’s claims against a defendant, such as an order of nonsuit, does not necessarily dispose of any cross-actions, such as a motion for sanctions , unless specifically stated within the order.” 284 S.W.3d 839, 840 (Tex. 2009) (per cu riam) (emphasis added). The Crites court held that an order of nonsuit was not a final judgment because (1) the defe ndant had previously filed a Chapter 74 motion for dismissal with prejudice a nd for sanctions and (2) the nonsuit order “did not resolve the pending motion because it did not contain specific language denying or granting relief.” Id . at 841. In a similar case, Unifund CCR Partners v. Villa , the supreme court again held that a dismissal order was not final because it did not dispose of a previously filed motion for sanctions. 299 S.W.3d 92, 96–97 (Tex. 2009) (per curiam). The Unifund court distinguished
Mantri and Lane Bank Equipment on the ground that those cases involved motions for sanctions that were filed after the cases had already been dismissed. Id . at 96. Other courts have followedCrites and Unifund

. See, e.g. , Walter v. Teller , No. 02-12-00028-CV, 2013 WL 5966351, at *2 (Tex. App.—Fort Worth Nov. 7, 20 13, no pet.) (mem. op.) (pending motion for sanctions under Chapter 10 of civil practice and remedies code prevented order of nonsuit from being final judgment); In re Anderson , No. 01-10-00182-CV, 2010 WL 1612309 (Tex. App.—Houston [1st Dist.] Apr. 19, 2010, orig. proceeding) (mem. op.) (same). AHC also relies on our Straza decision, in which we reaffirmed the rule that an otherwise final judgment is final even if it does not address court costs. See 124 S.W.3d at 406 (citing Thompson v. Beyer , 91 S.W.3d 902, 904 (Tex. App.—Dallas 2002, no pet.)). Straza is distinguishable because it concerned only an om ission of an award of court costs from an otherwise final judgment. The Ma rch 6 order in this case, by cont rast, not only fa iled to award costs but also set a further hearing on a pending request for “damages and costs,” meaning in this context costs, attorneys’ fees, a nd sanctions. The pendency of Alan ’s request for attorneys’ fees and sanctions and the March 6 order’s reservation of those matters for future litigation make this case more analogous to cases such as Crites , Unifund , and Interhealth

. We conclude that the March 6 order in this case was not a final judgment. Alan’s motion for sanctions was already pending when the trial judge signed the March 6 order of dismissal, and the order did not fully resolv e the motion for sanctions. This prevented the order from being a final judgment. See Unifund , 299 S.W.3d at 96–97; Crites , 284 S.W.3d at 840–41. Moreover, the March 6 order’s express rese rvation of the issue of “damag es and costs” under section 27.009 for determination at a later hear ing means that the trial judge’s intent to render a final judgment was not “unequivocally expressed in the wo rds of the order itself,” as required by Lehmann , 39 S.W.3d at 200. And to the extent the conduct of the parties is relevant to finality in this case, see Vaughn , 324 S.W.3d at 563, the parties co ntinued to litigate the case after March 6 as though the March 6 order were not a final judgment.Because the March 6 order was not a final j udgment, the April 14 final judgment is not void, and we have jurisdiction over this appeal . We reject AHC’s second issue on appeal. B. Jurisdiction over Dinah’s cross-appeal Next we consider AHC’s motion to dismiss Dinah’s cross-appeal. AHC contends that Dinah’s notice of cross-appeal, filed on June 25, 2012, was filed late because the deadline for her to file an interlocutory appeal from the denial of her motion was either March 18 or March 30, 2012. Dinah responds, in part, that her notice of cross-appeal was timely because she filed it within fourteen days after AHC filed its notice of appeal. We deny AHC’s motion. AHC’s argument is based on section 27.008(c), si nce repealed in 2013 but applicable to this case. Prior to the repeal , section 27.008 provided as follows: (a) If a court does not rule on a moti on to dismiss under Se ction 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal. (b) An appellate court shall expedite an appeal or ot her writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a tr ial court’s failure to rule on that motion in the time prescribed by Section 27.005. (c) An appeal or other writ under this sect ion must be filed on or before the 60th day after the date the trial court’s order is signed or the time prescribed by Section 27.005 expires, as applicable. Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2013) (current version at T EX
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. C ODE A NN . § 27.008 (West Supp. 2013)). Section 27.005(a) provides, “The court must rule on a mo tion [to dismiss] under Section 27.003 not later than the 30th day following the date of the hearing on the motion.” T EX
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. C ODE A NN . § 27.005(a) (West Supp. 2013). AHC argues that Dinah’s sixty-day deadline to appeal began to r un either January 18, when Dinah’s motion was supposedly denied by operation of law under section 27.005, or January 30, when the trial judge signed the nonsu it order. Implicit in AHC’s argument is anassumption that Dinah’s failure to take the in terlocutory appeal authorized by section 27.008 precluded her from appealing the denial of her motion to dismiss after final judgment. Dinah contends that her notice of appeal was timely unde r the general rule for notices of cross-appeal, Texas Rule of Appellate Procedure 26.1(d), becaus e she filed it within fourteen days after AHC filed its notice of appeal. In th is argument, Dinah assumes that sh e could appeal th e denial of her motion to dismiss under the general rules governing a ppeals after final judgments, even if she did not file an interlocutory app eal earlier in the process. We conclude that, on the facts of this case, Di nah was not obliged to file an interlocutory appeal and was entitled to appeal the denial of her motion to dismiss after final judgment. See Hernandez v. Ebrom , 289 S.W.3d 316 (Tex. 2009). Hernandez was a health-care-liability suit against Dr. Hernandez. Id . at 317. Dr. Hernandez filed a moti on to dismiss and for an award of fees and costs based on the expert-report provis ions of Chapter 74 of the civil practice and remedies code. Id . The trial court denied the motion, and Dr. Hernandez did not pursue an interlocutory appeal of that ruling even though one was available. Id . at 317–18. The plaintiff eventually nonsuited the case, and after final judg ment Dr. Hernandez appealed the denial of his motion to dismiss. Id . at 317. The court of appeals dismisse d his appeal for want of jurisdiction, but the supreme court reversed, holding that Dr . Hernandez’s failure to take the available interlocutory appeal did not preclude him from appealing after final judgment. Id . at 317–18. The supreme court focused largely on the permi ssive language of the interlocutory-appeal statute, which provides that a person “may” appeal from an interlocutory order that denies in whole or in part a Chapter 74 motion to dismiss. Id . at 318–19. The court also concluded that permitting the appeal after final judgment would advance the legislature’s purposes in adopting the motion-to-dismiss procedure by facilitating a de fendant’s right to seek redress for defending a meritless claim and by perhaps reducing th e number of interlocutory appeals. Id . at 319–20.Finally, the court cautioned that Dr. Hernandez would not have been permitted to appeal the denial of his motion to dismiss if the case had b een tried on the merits and resulted in a final judgment in favor of the plaintiff. Id . at 321. The language of the statute cr eating the right of interlocutory appeal in this case is permissive, just like the language at issue in Hernandez . Section 27.008(a) provides that the moving party “may appeal” after the denial of its motion to dismiss by operation of law. See
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. C ODE A NN . § 27.008(a). In this case, whet her the trial judge signed an order disposing of Dinah’s motion or her motion to dismiss was denied by operation of law thirty days after the hearing is not determinative. See id . § 27.005(a). As in Hernandez , the permissive language of Chapter 27’s interlocutory-appeal stat ute indicates a legislative intent not to make the interlocutory appeal mandatory. See 289 S.W.3d at 318–19. Moreover, the policy reasons relied on by the Hernandez court to support treating the interloc utory-appeal right as permissive also apply in the Chapter 27 context. Permitti ng Dinah to pursue her Ch apter 27 rights in this appeal after final judgment would allow her to vi ndicate rights afforded to her by the Legislature and might increase judicial efficiency by reduc ing the number of interlocutory appeals. See id . at 319–20. And the exception noted in Hernandez for cases that are tried and result in a final judgment in favor of the plainti ff does not apply in this case. Dinah was not required to pursu e an interlocutory appeal of the denial of her motion to dismiss. Given the outcome of the case, she wa s entitled to appeal that denial after final judgment under the rules generally applicable to such appeals. Under those rules, she timely filed her notice of appeal. See T EX
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. P. 26.1(d). We deny AHC’s motion to dismiss Dinah’s cr oss-appeal for lack of jurisdiction.III. AHC’ S A PPEAL We turn to AHC’s four remaining issues on appe al. In its first issue, AHC complains that the trial judge erred by hearing Alan’s motion to dismiss after the statutory deadline for the hearing had expired. In its third issue, AHC contends that it met its burden of proof under Chapter 27 and so the trial judge erred by granting Alan’s motion to dismiss. In its fourth and fifth issues, AHC complains about the awar ds of attorneys’ fees and sanctions. A. Timeliness of the hearing In its first issue on appeal, AHC argues that the trial judge erred by hearing Alan’s motion to dismiss on March 5, 2012, which was si xty days after Alan filed and served the motion. AHC relies on the versio n of section 27.004 applicable to this case, which provided as follows: “A hearing on a motion [to dismiss] under Section 27.003 must be se t not later than the 30th day after the date of service of the motion unl ess the docket conditions of the court require a later hearing.” Act of May 21, 2011, 82d Le g., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2013). AHC does not explain what conse quence should follow if we were to conclude that the hearing was untimely under section 27.004. We cannot address AHC’s first issue on appeal because the record does not demonstrate preservation in the trial court. AHC does not explain in its appella te briefs how it preserved this alleged error. AHC filed its response to Alan ’s motion to dismiss on Ma rch 5—the date of the hearing—but the response contains no objection to th e timeliness of the hearing. We do not have a reporter’s record from the March 5 hearing. The two volumes of reporter’s record from subsequent hearings that we do have contain no objections from AHC rega rding the timeliness of the March 5 hearing. Nor did AHC raise this argument in its moti on for new trial. Accordingly, AHC may not raise this argument on appeal. See T EX
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. P. 33.1(a) (general rule regardingerror preservation); Cadle Co. v. Jenkins , 266 S.W.3d 4, 7 n.4 (Tex. App.—Dallas 2008, no pet.) (rejecting argument not pr eserved in trial court). B. Propriety of the dismissal of AHC’s claims In its third issue on appeal, AHC argues that the trial judg e erred by granting Alan’s motion to dismiss because AHC successfully esta blished a prima facie case for each essential element of the claims it asserted against Alan, namely libel and tortious interference with prospective business relationships. In the context of a Chapter 27 motion to dismi ss, the movant bears the initial burden of showing by a preponderance of the evidence that th e claimant’s legal action is based on, relates to, or is in response to the movant’s exercise of the right of free speech, the right to petition, or the right of association. T EX
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. C ODE A NN . § 27.005(b); see also Pickens v. Cordia , No. 05-13-00780-CV, 2014 WL 2134540, at *2 (Tex. App.—Dallas May 22, 2014, no pet. h.). AHC does not contest that Alan satisfied his burden under section 27.005(b). Thus, the burden shifted to AHC to establish “by clear and sp ecific evidence a prim a facie case for each essential element of the claim in question.” T EX
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. C ODE A NN . § 27.005(c); see also Better Bus. Bureau of Metro. Da llas, Inc. v. BH DFW, Inc. , 402 S.W.3d 299, 309 (Tex. App.—Dallas 2013, pet. denied). Generally, a “prima facie standard requir es only the minimum quantum of evidence necessa ry to support a rational in ference that the allegation of fact is true.” In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2 004) (orig. proceeding) (internal quotations and citation omitted); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (applying this definition of “pri ma facie case” in Chapter 27 context). We review de novo the trial judge’s determination that AHC faile d to carry its burden under section 27.005(c). SeeRehak Creative Servs., Inc. v. Witt , 404 S.W.3d 716, 727 (Tex. A pp.—Houston [14th Dist.] 2013, pet. denied). 1. Libel Two essential elements of libel are that the defendant made a defamatory statement about the plaintiff and that he did so in written or other graphic form. 1 See T EX
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. C ODE A NN . § 73.001 (West 2011). A statement is defamato ry if it tends to injure the subject’s reputation, to expose him to public hatred, contempt , ridicule, or financial injury, or to impeach his honesty, integrity , or virtue. Blanche v. First Na tionwide Mortg. Corp. , 74 S.W.3d 444, 456 (Tex. App.—Dallas 2002, no pet.). A statement may be false, abusive, unpleasant, or objectionable without being defamatory in light of the surrounding circumstances. Double Diamond, Inc. v. Van Tyne , 109 S.W.3d 848, 854 (Tex. App.—Dalla s 2003, no pet.). Whether a statement is capable of a defamatory meaning is initially a question of law for the court. Gumpert v. ABF Freight Sys., Inc. , 293 S.W.3d 256, 264 (Tex. App.—D allas 2009, pet. denied). Moreover, to be actionable, a stat ement must assert an objectively ve rifiable fact rather than an opinion. See Main v. Royall , 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.); Shaw v. Palmer , 197 S.W.3d 854, 857 (Tex. App.—Dallas 2006, pet. denied); see also Neely v. Wilson , 418 S.W.3d 52, 62 (Tex. 2013) (“[S]tatements that are not verifiable as false cannot form the basis of a defamation claim.”). We classify a statement as fact or opinion based on the statement’s verifiability and the entire c ontext in which the statement was made. Bentley v.
Bunton , 94 S.W.3d 561, 581 (Tex. 2002). Whether a stat ement is a statement of fact or opinion

1 Libel has other elements, but they vary depending on the status of the speaker, the status of the person spoken about, and the contents of the statement. See Neely v. Wilson , 418 S.W.3d 52, 60–61 (Tex. 2013) (stating elements of de famation when defendant is a “media defendant”); Hancock v. Variyam , 400 S.W.3d 59, 64–66 & n.7 (Tex. 2013) (discu ssing elements of culpability and damages); Rehak Creative Servs., Inc. , 404 S.W.3d at 727 n.5 (discussing the burden of proof on truth or falsity). Discussion of those elements is not necessary to o ur disposition of this appeal.is also a question of law. Robertson v. Sw. Bell Yellow Pages, Inc. , 190 S.W.3d 899, 903 (Tex. App.—Dallas 2006, no pet.) AHC relies on evidence of three statements by Alan on various in ternet websites to support the elements of AHC’s libel claim, and we conclude that none of them constitutes an actionable defamatory statement of fact. First, AHC points to the fo llowing statement: “The guy th at was supposed to handle closing could barely speak english [sic].” We c onclude that this statem ent did not rise to the level of being defamatory. To be defamatory, a statement must tend to injure the subject’s reputation, expose him to public hatred, contempt, ridicule, or financial injury, or impeach his honesty, integrity, or virtue. Blanche , 74 S.W.3d at 456. This statement, although plainly intended as criticism, is not egregious enough to impeach AHC’s honesty, tarnish its reputation, or expose it to ridicule or financial in jury. It is akin to the statement in Double Diamond that a real-estate development lacked adequate roads and adequate water and sewer systems. 109 S.W.3d at 855. Although the statement constituted “ opinionated criticism,” we held as a matter of law that the statement was not egregious enough to be defamatory. Id . Moreover, we conclude that the statement complained of by AHC is a nonactionable statement of opinion because it cannot be objectively verified. Whet her someone can “barely speak English” is a matter of subjective opinion, because what one pe rson may view as non-proficient English may be completely acceptable to another person. See Palestine Herald–Press Co. v. Zimmer , 257 S.W.3d 504, 511–12 (Tex. App.—Tyler 2008, pet. denied ) (holding that stat ement that person made “obscene” gesture is a statement of subjec tive opinion, not objectivel y verifiable fact); see also Avila v. Larrea , 394 S.W.3d 646, 659 (Tex. App.—Dallas 2012, pet. denied) (observing that a statement is opinion if it is “by its nature, an indefinite or ambiguous in dividual judgment thatrests solely in the eye of the beholder”) (inter nal quotations omitted). AHC’s evidence of this statement is no evidence of a de famatory statement of fact. Next, AHC relies on these statements: “Chris and end [sic] everyone I talked to at this company were incompetent. They reviewd [sic] my credit rating and promised a quick close. Then the list of things got longer and longer.” We first consider the as sertion that “Chris” and AHC’s other employees were incompetent. We ha ve held that statements implying that someone is incompetent are nonactionable opinions b ecause they are not objectively verifiable. Robertson , 190 S.W.3d at 903; see also Lacy v. Dallas Cowboys Football Club , No. 3:11-CV0300-B, 2012 WL 2795979, at *13 (N.D. Tex. July 10, 2012) (“[S]tatements about an employee’s competency are expressi ons of opinion, not actionable asse rtions of fact . . . .”). Consistent with our opinion in Robertson , we hold that a statement expressly calling someone incompetent is a nonactionable st atement of opinion. The other statements amount to implicit criticism of AHC for requiring additional “things” after promising a quick close. These statements are not egregious enough to be defamatory. See Double Diamond , 109 S.W.3d at 855 (holding that criticism of real-e state development’s facilities was not defamatory). In sum, we conclude that these statements are no evid ence of a defamatory statement of fact. Finally, AHC relies on the following statem ent: “At one point they asked for an explanation of $200 out of a $30,000 de posit to make sure we were not ‘borrowing money’ for closing. It was my sons [sic] birthday money for god’s sakes!!!!” We conclude as a matter of law that this statement is not defamatory. At most, the statement communicates the author’s opinion that AHC was excessively demanding in requ iring information to s upport a loan request. The statement cannot fairly be read to injure AHC’s reputati on, expose AHC to public hatred, contempt, ridicule, or financial injury, or impeach AHC’s honesty, integrity, or virtue. See id

. (holding that criticism of real-e state development’s facilities wa s not defamatory). Moreover,whether a lending business is excessively demandi ng is not objectively verifiable, but rather a matter of subjective opinion. See Robertson , 190 S.W.3d at 903 (imp lying that employee is incompetent is an expression of opinion). AHC’s evidence of this statement is no evidence of a defamatory statement of fact. Because AHC produced no evidence of any defamatory statements of fact by Alan, the trial judge correctly dismissed AHC’s libel claim. 2. Tortious interference with pr ospective business relationships The elements of tortious inte rference with a prospective cont ract are: (1) a reasonable probability that the parties would have entered in to a business relationship; (2) an intentional, malicious intervention or an independently tort ious or unlawful act performed by the defendant with a conscious desire to prev ent the relationship from occurri ng or with know ledge that the interference was certa in or substantially likely to occur as a result of its c onduct; (3) a lack of privilege or justification for th e defendant’s actions; and (4) actual harm or damages suffered by the plaintiff as a result of the defendant’s interference. Anderton v. Cawley , 378 S.W.3d 38, 59 (Tex. App.—Dallas 2012, no pet.). Thus, to survive Alan’s mo tion to dismiss, AHC had to establish by clear and specific evidence a prima facie case for each of those essential elements.
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. C ODE A NN . § 27.005(c). The element of damages is dispositive. In its brief, AHC fails to identify any evidence of damages. Indeed, AHC’s entire argument on th e element of damages is a single sentence asserting that Alan’s conduct “has already cau sed (and will continue to cause) AHC significant damages.” AHC provides no record citation in support. We will not comb the record for evidence of damages without guidance from AHC. See Barnett v. Coppell N. Tex. Court, Ltd. , 123 S.W.3d 804, 817 (Tex. App.—Dallas 2003, pet. deni ed) (“An appellate court has no duty to search a voluminous record without sufficient gu idance from an appellant to determine whetheran assertion of reversib le error is valid.”); Most Worshipful Prince Ha ll Grand Lodge v. Jackson , 732 S.W.2d 407, 412 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc) (“This court is not required to search the record fo r evidence supporting a litigant’s position under particular points of error . . . .”); see also T EX
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. P. 38.1(i) (argument section of brief must contain “appropriate citations to aut horities and to the record”). AHC has not shown that it produced any eviden ce of the essential element of damages. Accordingly, we will not disturb the trial judge’s dismissal of AHC ’s tortious-interference claim. 3. Conclusion AHC’s third issue on appeal is without merit. C. Attorneys’ fees In its fourth issue on appeal, AHC contends that the record doe s not support Alan’s recovery of $15,616 as attorneys’ fees. AHC argues that the award improperly includes attorneys’ fees incurred before AHC joined Al an as a defendant in December 2011. AHC also argues that there is no evidence Al an actually paid or incurred an y amount as attorneys’ fees. We generally review a trial c ourt’s award of attorneys’ fees for abuse of discretion. Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd. , 409 S.W.3d 790, 803 (Tex. App.—Dallas 2013, no pet.). 1. Sufficiency of the evidence that Alan paid or incurred any fees We address AHC’s no-evidence argument first. A trial judge who dismisses an action under Chapter 27 “shall aw ard to the moving party . . . reasonable attorney’s fees . . . incurred in defending against the legal action as justice and equity may require.” T EX
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. C ODE A NN . § 27.009(a)(1). We find no cases interpreting th is particular statute, but in a similar context we have construed the word “incur” to mean “become liable to pay.” See Keever v. Finlan , 988 S.W.2d 300, 308 (Tex. App.—Dallas 1999, pe t. dism’d) (interpreting governmentcode provision authorizing award of “reasonable a ttorney’s fees incurred by” a substantiallyprevailing party). AHC argues that there is no evid ence that Alan incurred any attorneys’ fees in the course of defending this lawsuit. Accordin g to AHC, Alan’s eviden ce does not show that Alan ever agreed to pay attorneys’ fees, became lia ble to his attorneys’ law firm for fees, or paid any money to that law firm. Alan responds that the evidence sufficientl y shows that Alan both incurred and paid the fees awarded by the trial judge. The evidence concerning Alan’s attorneys’ f ees consisted principally of an affidavit by Alan and Dinah’s attorney David O’Dens, a c ontesting affidavit by AHC’s attorney Jeffrey Hellberg, and a collection of five invoices from O’Dens’s law firm to Alan and Dinah. We first agree with Alan that the eviden ce adequately shows that he ag reed to pay O’Dens and his law firm for legal services in this case. Alt hough O’Dens’s affidavit does not contain a direct statement to that effect, the follo wing testimony gives rise to a re asonable inference that such an agreement was made: My services and the services of S ETTLE P OU [law firm] were and are necessary and the expenses incurred are reasonable in that Plaintiff . . . filed suit against Defendants and it was reasonable and nece ssary for Defendants to retain legal counsel to represent and defe nd them in this action, as well as to assert their statutory rights under the Texa s Anti-SLAPP statute . . . . To this evidence we may add O’Dens’s subsequent description of the legal work he and others actually performed on the case and th e existence of the invoices dire cted to Alan and Dinah. The evidence, viewed as a whole, gives rise to a reas onable inference that Alan and Dinah did in fact “retain,” i.e., make an agreement to pay, O’De ns and his law firm for their legal services. We also agree with Alan that the evidence ad equately supports the proposition that Alan also incurred liability for and paid for 2 the legal services of O’Dens and his law firm. In his affidavit, O’Dens explains what services were performed by members of his law firm, how much

2 Section 27.009(a)(1) does not require paymen t as a precondition for an award of fees, but we discuss the evidence of payment b ecause actual payment of fees tends to show that those fees were previously “incurred.”time was spent on those services, and what the relevant hourly rates were. Coupled with his previous testimony indicating that Alan and Dinah retained O’Dens and his law firm to furnish those services, O’Dens’s testimony is some ev idence that Alan actually incurred—became liable to pay—fees for those services. As for actual payment, O’Dens testified, “As of the date of this Affidavit, Mr. [Alan] Gonzalez is current in the pa yment of attorneys’ fees invoiced to date.” This is some evidence that Alan actually paid fees to O’Dens and his law firm, which in turn tends to show that Alan “incurred,” or became liable for, those fees. In opposition, AHC relies on five invoices fr om O’Dens’s law firm to the Gonzalezes, one for each month from November 2011 through March 2012. Each of the first four invoices contains an itemization of fees and expenses, re cites a “Credit Adjustme nt” in the exact amount of the combined fees and expenses, and conclu des, “Total for THIS Invoice $0.00.” The last invoice is dated March 9, 2012. It contains an itemizati on of $468 in fees and $29.37 in expenses, and it concludes, “Total for THIS Invoice $497.37.” AHC argues that the invoices do not reflect that Alan ever actually paid or ow ed O’Dens’s law firm anything except the final invoiced amount of $497.37. We disagree. It appears that all five invoices were generated after March 9, 2012, because each invoice concludes with a reference to one “Open Invoice[] for this Matter” dated March 9, 2012, and each invoice also recites a balanc e due of $497.37. Each invoice except the last one reflects that the fees a nd expenses for that invoice were exactly offset by a “Credit Adjustment” in the appropriate amount . AHC’s inference that the law firm simply wrote off those fees and expenses is not reasonab le, particularly in light of the then-current March 2012 invoice seeking payment of almost $500 in fees and expenses from the Gonzalezes. By contrast, it is reasonable to infer that Alan had paid the first four invoices, so that when O’Dens’s law firm later generated copies of the invoices for AHC’s inspection in March 2012 those invoices reflected those payments as “Credit Adjustme nt[s]” and the balances owed onthose specific invoices as zero. We conclude th e record adequately supports the proposition that Alan did incur attorneys’ fees and expenses over and above the last invoiced amount of $497.37. The trial judge did not abuse his discretion by conc luding that Alan incurred fees and expenses in excess of $497.37. 2. Fees incurred prior to joinder of Alan In AHC’s other argument under issue four, it ar gues that Alan cannot recover attorneys’ fees incurred before AHC joined him as a de fendant in the lawsuit in December 2011. AHC argues as a matter of statutory interpretation that f ees and expenses incurred before it joined Alan as a defendant simply cannot be “r easonable attorney’s fees . . . incurred in defending against the legal action” under section 27.009(a)(1 ). Alan responds that the O’Dens affidavit shows that most of the legal services provided to Dinah befo re Alan was joined were also “preparatory to and necessary for the legal servi ces performed for Mr. [Alan] Gon zalez.” O’Dens also testified that, if he segregated out the fees attributable solely to Dinah’s representation, the reasonable and necessary fees incurred in Alan’s defense were $15,616. That is the amount the trial judge awarded Alan. We first review the relevant evidence. On October 18, 2011, the president and majority owner of AHC, Naushad Prasla, se nt Dinah an email demanding th at she remove the allegedly defamatory internet postings and threatening lega l action against her. For example, the email includes this statement: “My sec ond free advise [sic] is for you to get a good Lawyer in Dallas area as the venue for the Lawsuit has already b een set in Dallas County, Texas. See attached Rate Lock Confirmation and Agreement by you and r ead it carefully.” On that same date, Alan conferred with his and Dinah’s atto rney for the first time, and Alan began to incur attorneys’ fees for services relating to AHC’s email. On October 27, 2011, AHC sued Dinah under the mistaken belief that she had posted the messages in que stion. And on Decembe r 13, 2011, AHC filed itsamended petition joining Alan as a defendant. Alan and Dinah incu rred attorneys’ fees relating to AHC’s claims throughout October, Nove mber, and December of 2011. As noted above, Alan’s attorney offered evidence segregating attorneys’ fees attributable solely to the representation of Dinah. He did not segregate fees incurred in the representation of Alan either before October 27 or before December 13. Next we analyze the language of the statute. Chapter 27 allows a successful movant like Alan to recover his reasonable a ttorneys’ fees “incur red in defending agains t the legal action.”
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. C ODE A NN . § 27.009(a)(1). We must constr ue this provision, like all of Chapter 27, “liberally to effectuate its purpose and intent fully.” Id . § 27.011(b). The questions presented are (1) whether fees awarded under section 27.009(a)(1) must be limited to fees incurred after the successful m ovant was formally joined in th e lawsuit and, if not, (2) whether Alan’s fees incurred before December 13, 2011, are recoverable on the particular facts of this

case. Chapter 27 defines “legal action” as “a laws uit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judi cial pleading or filing that requests legal or equitable relief.” Id . § 27.001(6). So the term “legal action” is not limited to formal judicial pleadings and proceedings—it also includes “cause [s] of action.” Accordingly, Alan can recover his pre-joinder attorneys’ fees if he incurred them to defend against AHC’s “cause of action.” The statute does not define “cause of action,” but the generally accepted meaning of that term is “the fact or facts entitling one to institute an d maintain an action, which must be alleged and proved in order to obtain relief.” Loaisiga v. Cerda , 379 S.W.3d 248, 255 (Tex. 2012) (internal quotations and citations omitted). A “cause of action” generally arises before the formal filing of suit on that cause of action. Can a person “defend” against a cause of action that has arisen but not yet resulted in the filing of a lawsuit? We conclude that the answer is yes. To defend meansto “deny, contest, or oppose (an allegation or claim).” B LACK ’ S L AW D ICTIONARY 508 (10th ed. 2014). In order to properly defend, a lawyer must adequately prepare by i nvestigation, research, and drafting of pleadings. If a lawsuit is anticipa ted and, as in this case, comes to fruition, it is both reasonable and nece ssary to prepare a defense in adva nce. It would be a singularly inexperienced view to assume that legal work actually commences when a formal defense is filed in a lawsuit rather than well before the filing occurs. Once a cause of action has arisen and resulted in a claim or demand, even one made pre-suit, securing lega l services to oppose or contest the cause of action is a natural choice and a reasonable course of action. Delay and procrastination may lead to unplea sant consequences. If the legi slature had intended to limit the recovery of attorneys’ fees to fees incurred after the filing of suit against the movant, it presumably would have limited its definition of “l egal action” to formal legal proceedings or otherwise excluded “causes of action” from the sc ope of section 27.009(a)(1). For these reasons, we conclude that section 27.009(a)(1) permits a su ccessful movant to rec over attorneys’ fees incurred in the defense of a cause of action even if the fees were incurred before the movant was actually sued. Having clarified the meaning of section 27.009(a )(1), we have little difficulty concluding that the trial judge did not abuse his discreti on by awarding Alan his attorneys’ fees incurred before Alan was formally joined in this lawsuit. The evidence showed that Alan began incurring attorneys’ fees on October 18, 2011, the same da te AHC sent the threat ening email to Dinah about the allegedly defamatory posts that Alan ha d made. His attorneys’ fee statements showed that the pre-suit fees were incurred in response to AHC’s email for services such as settlement negotiations and legal research to ascertain the validity of AHC’s potential defamation claims. The trial judge could reasonably c onclude that Alan’s pre-joinder attorneys’ fees were in fact incurred in defending against AHC’s cause of action.On the facts of this case, we conclude that the trial judge did not abuse his discretion by awarding attorneys’ fees to Alan for legal se rvices rendered before Alan was actually sued. 3. Conclusion AHC’s fourth issue on appeal is without merit. D. Sanctions In its fifth issue on appeal, AHC contends th at there is no evidence to support the amount of sanctions awarded to Alan by the trial judge, which was $15,000. We generally review an
award of sanctions for abuse of discretion. See Am. Flood Research, Inc. v. Jones , 192 S.W.3d 581, 583 (Tex. 2006) (per curiam); see also Kinney v. BCG Attorney Search, Inc. , No. 03-12- 00579-CV, 2014 WL 1432012, at *11 (Tex. App.—Austin Apr. 11, 2014, pet. filed) (mem. op.) (employing abuse-of-discretion stan dard in review of sanction under Chapter 27). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Walker v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003). Section 27.009 prescribes that a court that dismisses a legal action under Chapter 27 shall award the movant “sanctions against the part y who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.” T EX
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. C ODE A NN . § 27.009(a)(2). The trial judge in this case made a general finding th at “[a] sanction in the amount of $15,000.00 will be sufficient to prevent AHC from bringing similar actio ns to this action.” AHC contends that there is no evidence to support this finding. Alan argues that the sanction amount was suppor ted by the evidence. First, he points out that Alan’s attorneys’ fees were $15,616, and he c ontends that the trial ju dge acted reasonably by concluding that a sanction of a similar amount would deter AHC from br inging a similar action in the future. Alan also points out Prasla’s affidavit and deposition te stimony showing that AHCmade a net profit of about $111,000 in 2009 and about $105,000 in 2010. As of the date of Prasla’s April 12, 2012 deposition, he did not know what AHC’s net profit was in 2011, but he guessed that it would be between $130,000 and $200,000. He also testified th at his salary in 2011 was $90,000 and that he paid his wife and da ughter a total of about $17,000 in 2011. Alan
also directs our attention to an email that Prasla sent to Dinah when he was under the belief that she had posted the internet messages about AHC. That email contains pa ssages such as, “You started this. You can end it. Ot herwise, I will end it for you, and it won’t be pretty.” Given this evidence, we conclude that a reasonable tr ial judge could have determined that a $15,000 sanction was appropriate and necessary to deter future lawsuits by AHC in the future, given AHC’s track record of profitability a nd Prasla’s aggressive email to Dinah. AHC argues that the sanction was not necessary to deter AHC from filing future lawsuits because there was evidence showing that it was not in AHC’s best interest to threaten its clients or file lawsuits, and that AHC could not surviv e if it treated customers unfairly or engaged in time-consuming lawsuits. AHC al so points to eviden ce that it had neve r sued anyone else before, and that it was a “difficult decision for AH C to file this suit.” It was the trial judge’s prerogative to weigh this eviden ce along with all the other eviden ce in determining, as a matter of discretion, how large the sanction needed to be to accomplish its statutory purpose. Moreover, we note that Alan argued for a sanction in the range of $45,000 to $60,000, so the trial judge
awarded a sanction that was substantiall y smaller than the one sought by Alan. We conclude that the sanction amount of $15,000 was neither arbitrary nor unreasonable, and that the trial judge did not abuse his discretion by imposing the sanction. We reject AHC’s fifth issue on appeal.IV. D INAH ’ S C ROSS -A PPEAL In her single issue on cross- appeal, Dinah asserts that the trial judg e erred by not conducting a hearing on her affirmative claims for relief under Chapter 27. These are the pertinent facts. On Novemb er 16, 2011, Dinah filed her motion to dismiss and for attorneys’ fees and sanctions. According to the trial judge’s findings of fact, the judge heard Dinah’s motion on December 19, 2011, and at the end of the proceeding he continued the hearing to January 30, 2012, so that mediation and limited discovery could take place. 3 On January 27, 2012, AHC filed a nonsuit of its claims against Dinah. At the January 30 hearing, AHC argued that Dinah’s motion was moot, and Di nah conversely pressed the judge to hear and rule on her motion. At the conclu sion of the hearing, the judge signed an order of nonsuit and “refused to entertain any relief sou ght by Mrs. Gonzalez in this action.” 4 Nothing in the record indicates that the judg e ever revisited Dinah’ s motion. The final judg ment awards Dinah no relief and recites that it “finally disposes of all parties and all claims and is appealable.” We reject Dinah’s issue on cross-appeal. Her so le complaint is that the trial judge did not conduct a hearing on her “affirmative claims” unde r Chapter 27. But the record refutes her claim. The trial judge held a hearing on her Chapter 27 motion on December 19. The judge continued the hearing until January 30, on which date the hearing on Dinah’s motion reconvened. At the conclusion of that proc eeding, the judge signed the order of nonsuit and refused to entertain any relief s ought by Dinah in the acti on. In short, the reco rd establishes that Dinah’s cross-appeal issue is without merit—the trial judge did in fact hear her motion, on two different dates. Dinah does not complain about the judge’s refusal to make an express ruling on

3 We do not have a reporter’s record of the December 19 hearing. A copy of what purports to be a transcript of the December 19 hearing is attached to Alan and Dinah’s brief, but we cannot consider it. “An appellate court cannot consid er a document cited in a brief and attached as an appendix if it is not formally included in the record on appeal.” In re Guardianship of Winn , 372 S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet.). 4 Again, we do not have a reporter’s record of this hearing. All facts about the hearing are taken from the trial judge’s findi ngs of fact and conclusions of law.her motion, the denial of her motion by operation of law, or the conclusive denial of her motion when the judge signed a final judgment granting her no relief. Because the record shows that Dinah received a hearing on her motion to dismiss, we reject her sole issue on cross-appeal. 5
V. D ISPOSITION We affirm the judgment of the trial court.

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5 We recently held that a defendant could no t rely on Chapter 27 as to a particular cl aim because his defense was that he did no t publish the speech allegedly giving rise to the claim. See Pickens v. Cordia , No. 05-13-00780-CV, 2014 WL 2134540, at *7 (Tex. App.—Dallas May 22, 2014, no pet. h.). Because Dinah claims that she did not publish any of the defamatory posts, Pickens indicates that she cannot rely on Chapter 27 in any event. /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AMERICAN HERITAGE CAPITAL, LP, Appellant/Cross-Appellee No. 05-12-00892-CV V. ALAN GONZALEZ, Appellee, and DINAH GONZALEZ, Cross-Appellant On Appeal from the 68th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-11-13741. Opinion delivered by Justice FitzGerald. Justices Francis and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee Alan Gonzalez recove r his costs of this appeal from appellant American Heritage Capital, LP. It is further ORDERED that appellant American Heritage Capital, LP and cross-appellant Dinah Gonzalez bear their own costs of this appeal.
Judgment entered July 1, 2014