Reversed and Remanded and Opinion filed October 10, 2013.

 In The

Fourteenth Court of Appeals

NO. 14-12-00963-CV

MICHAEL E. FITZMAURICE, Appellant

V.

HARVELLA JONES, Appellee

V.

NO. 14-12-01121-CV

WILLIAM FITZMAURICE, DOROTHY FITZMAURICE, GREGORY 

BRUMBAUGH AND KAREN MCCLURE, Appellants

V.

HARVELLA JONES, Appellee

On Appeal from the 155th District Court

Waller County, Texas

Trial Court Cause No. 12-10-21653
2

O P I N I O N

In cause number 14-12-00963-CV, Michael E. Fitzmaurice appeals from the 

trial court‘s order denying his motion to dismiss Harvella Jones‘s suit against him.

In cause number 14-12-01121-CV, William Fitzmaurice, Dorothy Fitzmaurice, 

Gregory Brumbaugh, and Karen McClure appeal from the trial court‘s order 

denying their motion to dismiss Jones‘s suit against them. We reverse and remand.

Overview

This appeal focuses on the ―Texas Citizens Participation Act,‖ which is 

codified in Chapter 27 of the Civil Practices and Remedies Code under the heading 

―Actions Involving the Exercise of Certain Constitutional Rights.‖ See Tex. Civ. 

Prac. & Rem. Code Ann. §§ 27.001–.011 (Vernon Supp. 2012). This statute is an 

anti-SLAPP law, which is an acronym for ―Strategic Lawsuits Against Public 

Participation.‖ See Rehak Creative Servs. Inc. v. Witt, 404 S.W.3d 716, 719 (Tex. 

App.—Houston [14th Dist.] 2013, pet. denied).

Chapter 27 seeks to ―encourage and safeguard the constitutional rights of 

persons to petition, speak freely, associate freely, and otherwise participate in 

government to the maximum extent permitted by law and, at the same time protect 

the rights of a person to file meritorious lawsuits for demonstrable injury.‖ Tex. 

Civ. Prac. & Rem. Code Ann. § 27.002. It does so by establishing a mechanism for 

early dismissal of lawsuits that threaten the right of free speech, the right to 

petition, or the right of association. Rehak, 404 S.W.3d at 719. The statute is to be 

―construed liberally to effectuate its purpose and intent fully.‖ Id. § 27.011(a).

In this case, we must apply this statute to a libel and business disparagement 

claim.
3

Background

This appeal arises from a dispute involving the Remington Forest 

Subdivision Homeowners Association, Inc. after a petition drive to recall its board 

members and replace them with a new board. The ousted board members were 

Michael Fitzmaurice, William Fitzmaurice, Dorothy Fitzmaurice, Gregory 

Brumbaugh, and Karen McClure. 

The Remington Forest homeowners association sued the new board and 

served Jones as an agent for the new board. Jones is the president of the National 

Homeowners Advocate Group, LLC; according to Jones, she worked with 

Remington Forest homeowner John Burton and others to accomplish the recall of 

the Remington Forest homeowners association board and replace it with a new 

board.

Jones contends that the Remington Forest homeowners association made 

defamatory statements about her in the lawsuit it filed seeking a declaratory 

judgment in connection with the new board. Jones sued Michael Fitzmaurice on 

June 28, 2012, asserting claims for libel and ―defamation of business reputation.‖ 

We construe Jones‘s claim for ―defamation of business reputation‖ to be a claim 

for business disparagement. See Rehak, 404 S.W.3d at 728.

Michael Fitzmaurice filed a general denial and a ―Motion to Dismiss Based 

on the Anti-Slapp Statute‖ on July 23, 2012. Michael Fitzmaurice argued in his 

motion to dismiss that Jones‘s petition ―fails as a matter of law‖ because (1) he is 

not a party to the Remington Forest homeowners association‘s lawsuit and he did 

not make any defamatory statements; and (2) the statements are not actionable 

because ―they were made in a pleading for a judicial proceeding and therefore have 

an absolute privilege attached to them.‖ He also asked the court to award him 

legal fees and costs pursuant to Texas Civil Practice and Remedies Code section 
4

27.009(a).

Jones filed a response to Michael Fitzmaurice‘s motion to dismiss and a 

motion for sanctions pursuant to Texas Rule of Civil Procedure 13 on July 27, 

2012. Jones alleged that Michael Fitzmaurice‘s motion to dismiss contained 

―several misstatements pertaining to [Jones]‘s libel suit‖ and reiterated that the 

―statements made throughout his lawsuit‖ contained several libelous statements. 

Jones also asked the trial court to impose sanctions under Rule 13 on Michael 

Fitzmaurice and his attorney for filing a frivolous motion to dismiss.

Jones filed a first amended petition on August 1, 2012; the amended petition 

added Dorothy Fitzmaurice, Greg Brumbaugh, Karen McClure, and William 

Fitzmaurice as defendants but made no new allegations with regard to her libel and 

business disparagement claims.1

Jones filed a supplement to her response to Michael Fitzmaurice‘s motion to 

dismiss and a supplement to her motion for sanctions on October 8, 2012 under 

cause number 12-10-21653. In her supplement, she made no new arguments 

except to allege that the ―point of a SLAPP is to intimidate and silence the target 

through the threat of an expensive lawsuit.‖ She attached two articles discussing 

anti-SLAPP law and alleged that the attached articles will ―explain in more detail 

the true purpose of this statute and will show it is not appropriate for use by 

 

1 On August 8, 2012, the Remington Forest homeowners association filed a ―Motion to 

Sever the claims asserted by [Jones] in her First Amended Petition styled Harvella Jones vs. 

Michael E. Fitzmaurice, Dorothy Fitzmaurice, Greg Brumbaugh, Karen McClure, and William 

Fitzmaurice from the above entitled and numbered Cause No. 12-06-21502.‖ In the motion, 

Remington Forest homeowners association argued that Jones‘s claims were not properly before 

the trial court under the original case cause number 12-06-21502 because neither Jones nor the 

defendants named in Jones‘s amended petition are parties to the original case involving the 

Remington Forest homeowners association and the ―Putative Board.‖ At some point, Jones‘s 

claims against Michael Fitzmaurice, Dorothy Fitzmaurice, Greg Brumbaugh, Karen McClure, 

and William Fitzmaurice were assigned cause number 12-10-21653 and all further pleadings 

were filed under that assigned cause number. 
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[Michael Fitzmaurice] to seek dismissal of [Jones]‘s lawsuit.‖ Jones asked the trial 

court to impose sanctions under Rule 13 because Michael Fitzmaurice has abused 

the system by invoking the anti-SLAPP statute to seek dismissal of a legitimate 

complaint against him.

Michael Fitzmaurice filed a reply to Jones‘s supplement to her response to 

Michael Fitzmaurice‘s motion to dismiss on October 9, 2012. He argued that 

dismissal of Jones‘s claims is mandatory under the anti-SLAPP statute because (1) 

he is not a party to the Remington Forest homeowners association‘s lawsuit and 

did not publish any defamatory statements about Jones; and (2) the statements 

upon which Jones predicates her claims are not actionable because they were made 

in a pleading and are absolutely privileged. He also asked the court to award him 

legal fees and costs pursuant to Texas Practice and Remedies Code section 

27.009(a).

The trial court signed an order in cause number 12-10-21653 denying 

Michael Fitzmaurice‘s ―Motion to Dismiss Based on the Anti-Slapp Statute‖ on 

October 10, 2012. Michael Fitzmaurice timely filed a notice of accelerated appeal 

on October 16, 2012, pursuant to Texas Civil Practice and Remedies Code section 

27.008(c). See Rehak, 404 S.W.3d at 725 n.4 (citing Direct Commercial Funding, 

Inc. v. Beacon Hill Estates, LLC, No. 14–12–00896–CV, 2013 WL 407029 (Tex. 

App.—Houston [14th Dist.] Jan. 24, 2013, Order)).2 His appeal was assigned 

cause number 14-12-00963-CV in this court.

Jones filed a second amended petition under cause number 12-10-21653 on 

October 10, 2012, naming Michael Fitzmaurice, Dorothy Fitzmaurice, Greg 

 

2

See also Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2013 WL 4516106, at *3 

(Tex. App.—Austin Aug. 21, 2013, no pet. h.) (mem. op.) (recognizing that legislature in its 2013 session 

amended chapter 54 of the Civil Practice and Remedies Code to provide for interlocutory appeal of a trial 

court‘s express denial of a motion to dismiss filed under section 27.003).
6

Brumbaugh, Karen McClure, and William Fitzmaurice as defendants. In her 

petition, Jones did not add any new claims or arguments.

Defendants Dorothy Fitzmaurice, Greg Brumbaugh, Karen McClure, and 

William Fitzmaurice filed a general denial in cause number 12-10-21653, and a 

―Motion to Dismiss Based on the Anti-Slapp Statute‖ on November 14, 2012. In 

their motion to dismiss, the defendants argued that Jones‘s petition ―fails as a 

matter of law‖ because (1) defendants are not parties to Remington Forest

homeowners association‘s lawsuit and they did not make any defamatory 

statements; and (2) the statements are not actionable because ―they were made in a 

pleading for a judicial proceeding and therefore have an absolute privilege attached 

to them.‖ The defendants also asked the court to award legal fees and costs in their 

favor pursuant to section 27.009(a).

Jones filed a response to the defendants‘ motion to dismiss on December 6, 

2012. In her response, Jones stated that ―[n]egative comments were posted on 

Facebook and various misinformation spread about [her] in the community by 

Defendants and because of [her] advocacy work with the homeowners, she was 

sued along with the new board and accused of being a member and  ̳acting as an 

officer of the Putative Board‘ being sued by the [Remington Forest homeowners 

association].‖ She did not attach any evidence to support her statement. Jones 

asked for sanctions against the defendants and their attorney.

On December 6, 2012, the trial court signed an order in cause number 12-10-

21653 denying the November 14, 2012 motion to dismiss. The defendants timely 

filed a notice of accelerated appeal on December 10, 2012, pursuant to Texas Civil 

Practice and Remedies Code section 27.008(c); their appeal was assigned cause 

number 14-12-01121-CV in this court. 
7

Michael Fitzmaurice, Dorothy Fitzmaurice, Greg Brumbaugh, Karen 

McClure, and William Fitzmaurice (collectively, ―Appellants‖) filed a motion to 

consolidate their respective appeals. This court granted the motion and ordered the 

two appeals consolidated under appellate cause numbers 14-12-00963-CV and 14-

12-01121-CV.

Analysis

Appellants argue that the trial court erred by denying their motions to 

dismiss Jones‘s claims for libel and business disparagement pursuant to section 

27.005(c) because (1) the allegedly defamatory statements Jones complained about 

are subject to judicial privilege and are not actionable; and, alternatively, (2) Jones 

―failed to present clear and convincing evidence of each element of her libel claim 

as required‖ by section 27.005(c).

―A trial court ―shall dismiss a legal action against the moving party if the 

moving party shows by a preponderance of the evidence that the legal action is 

based on, relates to, or is in response to the party‘s exercise of: (1) the right of free 

speech; (2) the right to petition; or (3) the right of association. Tex. Civ. Prac. & 

Rem. Code Ann. § 27.005(b). ―The court may not dismiss a legal action under this 

section if the party bringing the legal action establishes by clear and specific 

evidence a prima facie case for each essential element of the claim in question.‖ 

Id. § 27.005(c).

There is no dispute that Jones‘s claims for libel and business disparagement 

are based on, related to, or asserted in response to the ―right to petition.‖ The 

parties‘ dispute focuses on whether Jones met her section 27.005(c) burden to 

establish ―by clear and specific evidence a prima facie case for each essential 

element of the claim in question.‖ Conclusory statements are not probative and 

accordingly will not suffice to establish a prima facie case. Better Bus. Bureau of 
8

Metro. Houston, Inc. v. John Moore Servs., Inc., No. 01–12–00990–CV, 2013 WL 

3716693, at*5 (Tex. App.—Houston [1st Dist.] July 16, 2013, pet. filed) (citing In 

re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223-24 (Tex. 2004)). The 

statute requires that the proof offered address and support each ―essential element‖ 

of every claim asserted with ―clear and specific evidence.‖ Id. Accordingly, we 

examine the pleadings and the evidence3in a light favorable to Jones to determine 

whether she marshaled ―clear and specific‖ evidence to support each element of 

her causes of action. Id.

On appeal from an order decided under section 27.005(c), we determine de 

novo whether the record contains a minimum quantum of clear and specific 

evidence that, unaided by inferences, would establish each essential element of

Jones‘s claims for libel and business disparagement if no contrary evidence is 

offered. See Rehak, 404 S.W.3d at 727. 

Libel is ―a defamation expressed in written or other graphic form . . . .‖ Tex. 

Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2011). A libel plaintiff must 

prove that the defendant ―(1) published a statement; (2) that was defamatory 

concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff 

was a public official or public figure, or negligence, if the plaintiff was a private 

individual, regarding the truth of the statement.‖ Rehak, 404 S.W.3d at 727 (citing 

WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).

A business disparagement claim is similar in many respects to a defamation 

action. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 

2003). The two torts differ in that defamation actions chiefly serve to protect the 

 

3

In determining whether a legal action should be dismissed under this chapter, the court 

shall consider the pleadings and supporting and opposing affidavits stating the facts on which the 

liability or defense is based. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).
9

personal reputation of an injured party, while a business disparagement claim 

protects economic interests. Id. ―Business disparagement requires proof of 

 ̳publication by the defendant of the disparaging words, falsity, malice, lack of 

privilege, and special damages.‘‖ Rehak, 404 S.W.3d at 728 (quoting Prudential 

Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 82 (Tex. 2000)). The 

words at issue must be defamatory to be actionable as business disparagement. Id.

Appellants argue that Jones cannot meet her statutory burden because the 

statements Jones complained about are privileged.

Communications made in the due course of a judicial proceeding are 

absolutely privileged and will not serve as the basis of a civil action for libel,

slander, or business disparagement, regardless of the negligence or malice with 

which they are made. See James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982); 

Kastner v. Kroger Co., No. 14-11-00445-CV, 2012 WL 4757920, at *5 (Tex. 

App.—Houston [14th Dist.] Oct. 4, 2012, no pet.) (mem. op.); see also Ross v. 

Arkwright Mut. Ins. Co., 892 S.W.2d 119, 132 (Tex. App.—Houston [14th Dist.] 

1994, no writ). This privilege extends to any statements made by the judges, 

jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings, 

including statements made in open court, pre-trial hearings, depositions, affidavits, 

and any pleadings or other papers in the case. James, 637 S.W.2d at 916–917;

Kastner, 2012 WL 4757920, at *5. The privilege extends to statements made in 

contemplation of and preliminary to judicial proceedings. Watson v. Kaminski, 51 

S.W.3d 825, 827 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (letter alleging 

that prisoner was trying to extort money from appellants and that he was likely to 

be sued if he attempted to do so came within judicial privilege, even though no 

litigation was pending).
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The privilege encompasses communications that bear some relationship to 

pending or proposed litigation and further the representation. Id.; but see Bell v. 

Lee, 49 S.W.3d 8, 11 (Tex. App.—San Antonio 2001, no pet.) (privilege attaches if 

statement has some relationship to contemplated proceeding regardless of whether 

it actually furthers representation). Determining whether an allegedly defamatory 

communication is related to a proposed or existing judicial proceeding is a 

question of law. Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 28 (Tex. 

App.—Houston [1st Dist.] 2004, pet. denied). When deciding the issue, ―the court 

must consider the entire communication in its context, and must extend the 

privilege to any statement that bears some relation to an existing or proposed 

judicial proceeding.‖ Id. (quoting Russell v. Clark, 620 S.W.2d 865, 870 (Tex. 

Civ. App.—Dallas 1981, writ ref‘d n.r.e.)). All doubt should be resolved in favor 

of the privilege. Id.

Here, Jones predicated her libel and business disparagement claims on 

allegations that statements in the Remington Forest homeowners association‘s

original petition were defamatory and caused her damages. Because the statements 

Jones complained of were made in a pleading and relate to a judicial proceeding, 

these statements are absolutely privileged and cannot serve as the basis of a civil 

action for libel or business disparagement. See James, 637 S.W.2d at 916; 

Kastner, 2012 WL 4757920, at *5; Daystar Residential, 176 S.W.3d at 28; 

Watson, 51 S.W.3d at 827; Arkwright, 892 S.W.2d at 132. 

In her petition and her response to the motion to dismiss, Jones included a 

passing reference to ―lies‖ spread on Facebook. This passing reference does not 

constitute clear and specific prima facie evidence. See Tex. Civ. Prac. & Rem. 

Code Ann. § 27.006(a); Rehak, 404 S.W.3d at 727. Jones did not attach any 

evidence of statements appearing on Facebook. Therefore, Jones did not meet her 
11

burden to establish by clear and specific evidence each element of her claims in 

connection with asserted ―lies‖ on Facebook as required by § 27.005(c). See 

Rehak, 404 S.W.3d at 727. 

It follows that the trial court erred by denying Appellants‘ motions to 

dismiss Jones‘s claims for libel and business disparagement because Jones cannot 

sustain her burden to show by clear and specific evidence a prima facie case for 

each essential element of her claims. We further conclude that the trial court erred 

by not awarding Appellants reasonable attorney‘s fees and court costs as requested 

by Appellants and required by section 27.009(a). See Tex. Civ. Prac. & Rem. 

Code Ann. § 27.009(a) (if the court orders dismissal of a legal action under this 

chapter, the court shall award to the moving party court costs, reasonable 

attorney‘s fees, and other expenses incurred in defending against the legal action as 

justice and equity may require).

Accordingly, we sustain Appellants‘ issues on appeal.

Conclusion

We reverse the trial court‘s denial of Appellants‘ motions to dismiss and

remand this case to the trial court to grant Appellants‘ motions to dismiss and 

award Appellants reasonable attorney‘s fees and court costs in accordance with 

section 27.009(a). 

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce, Jamison and Busby.