### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00380
- CV

Liat Zilkha
- Shohamy and Tal Shohamy , Appellant s

v. Lenore Vincent Corazza , Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 006883 , THE HONORABLE DON R. BURG E SS , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellants Liat Zilkha

- Shohamy and Tal Shohamy appeal from the district

court ’ s order denying their motion to dismiss under the Texas Citizens Participation Act (“TCPA”). See Tex. Civ. Pr ac. & Rem. Code § 27.003

. 1 In two issues on appeal, they assert that the district court erred in denying the motion to dismiss because (1 ) appellee Lenore Vincent
Corazza failed to provide clear and specific evidence to support eac h essential elemen t of a prim a facie case of defamation ; and (2) app ellants established by a preponderance of the
evidence each essential element of a valid defense to defamation

. We will affirm the district

cour t ’ s or d er
.

1 The TCPA was amended in the 2019 legislative session, but those amendme nts do not apply to this lawsu it, which was filed in 2018

. See Act of May 17, 2 019, 86th Leg., R.S. , ch. 378, §§ 11, 12, 201 9 Tex. Gen. La ws 6 84, 687 (amen dm ents to TCPA apply “only to an action filed on or after” September 1, 2019). All re ferences to th e T CPA are to the version in e xistence at t he time t his suit was filed

.2 BACKGROUND
Coraz za was the former office manager for White A n gel Animal Hospital , a veterinary clinic owned by Liat Zilkha

- Shohamy and operated by Zilkha

- Sho hamy ’ s husband,
T al Shohamy

. Corazza ’ s employm ent with the clinic ended on August 15, 201 7.

In November 2018, Corazza sued appellants for defamat ion , allegin g that on or about August 31, 2017 , Shohamy “ sent an email with false statements accusing [ Corazza ] of
fraudulent schemes tha t included embezzlement from the practice

. ” Ac cording to the allegations
in Corazza ’ s petition , “ The se false allegations o f fraudu l ent schemes were widely made known among multiple clients and others ” by appellan ts and that “ [ a ] s a result of the false all egations, [ Corazza ] has been subjected to u ndue strict scrutiny ” and “ was terminated from subsequent employment because of the cont i nuous attack [s] made by [appellants] to her new place of employment

. ” Corazza a lleged that t he false statements “ constitute defamation per se because they accuse [ Cora zza ] of engaging in illegal activity and/or they dir ectly bear on her fitness as a

mana g er and employee. ” She further alleged that the statements were “ defamatory because they
tend to injure [ Corazza ] ’s reputatio n in the veterinary community and expose he r to public hatred, contempt, ridicule, and financial inju ry, and impeach her ho nesty a n d integrity

. ” Corazza
added that appellants “ published the defamatory statements (calling Plaintiff a thief) with the
knowle dge that they were false or with substantia l gr ounds for knowing that they might be false
and with re c kless disregard to wh ether t h ey were true or false. These defamatory remarks were made, both spoken and in writing, to others who knew Plaintiff. ”

Appella nts filed a motion to dismiss the suit purs uant to the TCPA . In the motion, appellants assert ed that the allegedly false state me n ts were protected b y the TCPA as an exercise of their free

- speech rights , “ were true a nd/or subst antially true when published and/or3

[they] had a reasonable and good faith basis to believe s uch statements were tr ue at the time
of publication and in the ma n ner published , ” “ were opinions and/or a fair comme nt upon the underlying facts , ” and “ were nei ther negligent, nor uttered with malice

. ”

The district c ourt held an evidentia ry hearing on the motion to dismiss. Corazza

was t he sole witness to testify at the hearing

. Cor azza testified that she began working for the
clinic in March 2014. When asked to describe the end of her employment , Corazza testified
that she had decided to leave the clinic in Au gust 2017 after she began having disagreements
with Sh oh amy regarding some of his business decisions

. B efore Corazza quit, she had received
a call from Zilkha

- Shohamy , who “ sounded distraught ” and “ sai d that there was [a] dollar
raise ” to Corazza ’ s salary. Corazza testified that she told Zilkh a - Shohamy, “ Yeah , I know,
that ’ s something we had talked about

— . ” 2 The next day, Corazz a g a ve the cl inic her t w o weeks ’
notice but was told t hat her employment w ith the clinic was terminated effecti ve immediately.

Corazza testified that after her emplo yment with the c linic ended, appellants told

“ multiple individuals ” that Corazza had lied and st olen money f rom the clinic

. When asked how
th is affected her repu tation in the veterinary community , Corazza testified that she was hired by
Bee Ca ve Veterinary Clinic in Sept ember 2017 but was fired in November 2 017 w hen appellants
filed a criminal theft charge against he r and sued Cor azza and her employer for stealing clients from appellants ’ clinic

. Cor azza was not able to find a nother job until September 2018, after
the t h eft ch arge against her w as dismissed

. She testified tha t h er current employer “ just took a
chance ” on Corazza because “ he was told by doctors in the community ” that Cor azza “ was a

2 Before Corazza could complete her sentence, counsel for appellants ob ject ed to hearsay

. Although the district court overruled the objection, there was no further testimony elicited rega rding th e in crease to Corazza ’ s salary.4

thief , ” and that Corazza had to “ explai n everything to [her] new staff

. ” C orazza denied stealing anything from the c l inic or appellants

.

Dr. Jennifer Barker, a veterinarian formerly e mployed at appellants ’ clinic , p rovided an affidavit in which she explained that after she had been fire d from the clinic, she
learned that Coraz za “ ha [ d ] been fired for the ft. ” S he explained that t he clinic “ issu ed a ver y in

depth email that they sent out to all on their email list, de aling [with ] why [Corazza] was fired
and that nobody should listen to an ything she has to say about the situation

. ” Bo nnie Threewit, a former emplo yee at appellants ’ clinic, provided an aff idavit in which she averred that after she had left the clinic, sh e “ received an email regarding [Co razza] having stolen from the company. ” Stephan ie Foster, a former employee at the Be e Ca ve Veterin ary Clinic, pr ovided an affidavit in
which she stated th at she had “ personally witness[ed] ” Sh o h a my make “ false allega tions ” against
Corazza , although she did not explain the nature of the a llegations

.

Evidence submitted by appellants include d a copy of the August 31, 2017 email
that Cor az z a alle ge d was de famatory

. The email , in its entiret y , read s as follows:

Good Afterno on White Angel Animal Hospital Family, We would like to inform our clients of a ch ange in management at White Angel Animal Hospital. Due to financi al discrepancies recently noted, Lenore is no longer employed with us. It has come to our attention that Len ore has communicated with several of the valued rescue groups and/or clien ts which we serve regarding our ability o r willi ngness to continue the rel ationship. This is inaccurate and not a r eflection of our values or intentions. Please disregard any commu nications that you receive from her in association with White Angel Animal Hospita l as of August 15, 2017. We since rely ap ologize for any inconvenie nce or hurt feelings that this may have ca used to our v alued clients and animal welfare groups

. We want you to know that we appreciate your patience and loyalty during this difficul t time a s always. We will miss Lenore and we wis h her the best of luck in her future endeavors !5

If you have any que stions or concer ns, please feel free to give us a call. Dr. Zilkh a will continue to be the primary veterinary practitioner at White Angel. Ali [Ne lson, Corazza ’s replacement , ] wil l be man aging the hospital and wi ll be more than happy to speak with anyone who needs assistance. Sincerely, Your Family at Wh ite Angel Anima l Hospital

O ther e vidence presented by appellants included an affidavit by Zil kha

- Shohamy , who explained her view o f the ci rcumstances surroundi ng Corazza’s termination:
I was absolutely devastated to learn in August 2017 of a discrepancy with regard t o Lenore’s payroll account. I discovered from our HR payroll processor, Hill Count ry Payroll, that Lenore had increase d her pa y rate from $18 an hou r to $19 an hour without authorization fro m me. Lenore’s responses to me regarding the matter were unsatisfa ctory and defensive. After reviewing White A ngel, PLLC’s practice accounts, I als o discovered further instances of a buse of the practice’s business accounts which included an unauthorized d iscount of clinic services and the use of White Angel’s business a ccount to make a personal order for dog food. On or about August 15, 2017, I had t o make the difficult decision to te rminate Lenore Corazza from Whi te Angel, PLLC.
Writ Baese, an employee wi th Hill Country Payroll, provided an affidavit in which he confirm ed that “on or about July 31, 2017, Lenore V. Corazza, as the authorized payroll c ontact for White Angel, submitted a payroll worksheet to Hill Coun try Payroll that changed her pay rate from $18 an hour to $19 an hour.”

Zilkha

- Shohamy further averred tha t Corazza had “refused to cooperate” with the
cl inic’s end

- of

- employment policies and had interfered with the clinic’ s business relationships by sen ding unauthorized emails to the clinic’s c lients. It was this interference, Zilkha

- Shohamy explained , that prompted the email to the clinic ’ s clients regardi ng Corazza’s departure. Ali
Nel son, the clinic’s office manager af ter Corazz a, provided an affida vit in which she explained
that she had di scovered that Corazza had sent unauthorized emails to cli ents of t he clinic and6

en gaged in other behavior that was harmful to the clinic

. Shoha my provided a n affidavit in
which he av erred that “ Corazza sent em ails to White Angel clients claiming the c linic was discontinuing its relationship with the cl ients ” and exp lained that “ [ i ] t became necessary for White Angel to address this problem by send ing a statement to White Angel Animal H ospital
cl ients setting the record straight regarding Lenore Corazza’ s termination and her unauthorized access to White Angel’s email a ccounts

. ” He also denied personally sending the email to the
clien ts but acknowled ged that the clinic did so.

At the conclusion of the hearing , the district court denied appellants ’ moti on to dis miss. This interlocutory ap peal followed. See id . § 51 .014(a)(12)

.

TCPA FRAMEWORK AND STANDARD OF REVIEW

“ The Legislature enacted the TCP A ‘ to encourage and safeguard the con stitutional
ri ghts of persons to petition, speak freely, associate free ly, and otherwise participate in
gove rnment to the maximum e xtent permitted by law and, at the same time, protect the rights of a person to f

ile mer itorious lawsuits for demonstrable in jury. ’ ” In re Panchakarla , 60 2 S.W.3d 536, 538 (Tex. 2020) (orig. proce eding) (quoting Tex. Civ. Prac. & Rem . Code § 27.002 ). To ac comp lish th is , the TCPA authorizes “expedited consideration of any suit that
app ears to stifle the [movant] ’ s communication on a matter o f public concern .” Id

. (quoting
In re Lipsky , 460 S.W.3d 579, 584 (Tex. 2015) (ori g. procee din g ))

. Th us , “[i]f a legal ac tion is based on, relates to, or is in response to a party ’ s exercise of the right of free speech, right

to petition, o r right of ass ociation, that p a rty may file a motion to dismiss the lega l action.”
Tex. Civ. Prac. & Rem. Co de § 27.003

.7 “ The statute re quires a three

- step decisional process. ” Creative Oil & Gas, LLC
v. Lona Hi lls Ran ch, LLC , 591 S.W.3d 127 , 132 (Tex. 2 01 9)

. “ First, the party movin g for dismissal must show, by a prepondera nce of the evidence, that the ‘ legal action is based on,
relates to, or is in response to a [mov ant] ’ s exercise of the right of free speech. ’ ” Dall as Morning News, Inc. v. Hall , 579 S. W.3d 370, 37 6 ( Tex. 2019) (quot ing Tex. Civ. Prac. & Rem. Code § 27.003(a ) )

. Second, “ [ t ] he burden then shift s to the plaintiff to establ ish ‘ by clear and specific evidence a prima facie case for each essential el ement o f the claim in question. ’ ” Id

. (qu oting
Tex. Civ. Prac. & Rem. Co de § 27.005(c) )

. Third, the TCPA “ require s a court to dismiss the legal action if ‘ the moving party establ ishes by a preponderance of the evidence each essential
element of a valid d efense to the nonmovant ’ s claim. ’ ” Id

. ( q uoting Tex. Civ . Prac. & Rem.
C ode § 27.005(d) )

. “ If the plaintiff fails to carry [her] burden

— or if the mova nt establishes the
essential elements of a valid defense under section 27.005(d)

— the trial court must d ismiss the
suit. ” Id . at 377

.

“In deci ding if dismissal i s warranted , w e consider all the ‘pleadings and supportin g and opposing affidavits stating the facts on which the liabilit y or defense is based.’”
Id

. (quoting Tex. Civ. Prac. & Rem. Code § 27.00 6 ( a ) )

. W h ether the parti es met or failed to

m eet their burde ns of pr oof und er the TCPA is a question of law that we r eview de nov o
. See id

.

“ We also rev iew de novo , under the TCPA, ‘ whether a nonmovant has presented clear and specific evidence establishing a prim a facie case for each essen tial elem ent of the chall enged
claims. ’ ” Landry ’ s, Inc. v. Animal Legal Defense Fund , ___ S.W.3d ___, 2021 WL 2021130 , at *2 (Tex. May 21, 2021) (quoting Serafine v. Blunt , 466 S.W .3d 352, 357 (Tex. App.

— Austin 2015, no p et.) )

.8 “ The words ‘ clear ’ and ‘ speci fic ’ in the context of [the TCPA] h ave been interpreted respectively to mean, for the former, ‘ “ unambiguous, ” “ sur e, ” or “ free from doubt ” ’

an d, for the latter, ‘ “ explicit ” ’ or ‘ “ r elating to a particular named thing. ” ” ’ Lipsky , 460 S.W.3d

at 59 0 ( quoting KTRK Television, Inc. v . Robinson , 409 S.W.3d 682, 689 (Tex. App.

— Houston [1st D ist.] 2013, pet. denied ) ). A prima f acie case “ refers to evidenc e sufficient as a matter of
law to e stablish a given fact if it is not rebut ted or contradicted

. ” Id

. “ It is the ‘ minimum quantum of evidence neces sary to support a rational inference that the allegation of fact is true. ’ ”
Id

. (quoting In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 2 23 (Tex. 2004) (orig. proceeding) (per curiam) ). A court m ay not dismiss a lega l action if the non movant es tablishes “a prima facie case for each essential element of the cl aim in question” unless the movant

es tablishes “by a preponderanc e of the evidence each essential element of a valid defense to the

nonmovant ’ s clai m.” Tex. Civ. Prac. & Rem. Code § 27.005(c ), (d)

. In determining whether the
nonmovant has met th is burden, the court views the evidence in the light most favorable to the

nonmovant. Warner Bros. Entm’t, Inc. v. Jones , 538 S.W.3d 781, 801 (Tex. Ap p.

— Aust in 2017) , aff ’ d , 611 S.W.3d 1 (T ex. 2020)

.

DISCUSSION
Prima Fac ie C ase for Def amation
Corazza does not dispute that appellants satisfie d the ir initial burden to show th at her legal action is subject to the TCPA

. Thus, under the de cisio nal fram ework summarized
abo ve, the burden shift e d to Corazza to present clear and specific evidence establishing a prima fa cie case for each essential element of the challenged claim of d efamatio n
. See Hall ,9

579 S.W.3d at 377 ( citing Tex. C iv. Prac. & Rem. Code § 27.00 5 (c) )

. In th eir first i ssue,
appe llants assert that Corazza failed to meet that burden.

Defamation occur s when: “ (1) the defendant published a false statement; (2) that
defamed t he plaintiff; (3) with the requ isite degree of fault regarding the truth of the statem ent (neglig ence if the plaintiff is a private individual); and (4) damages (unless the statement
constitutes defamation per se). ” D Mag

. Partners, L.P. v. R osenthal , 529 S.W.3d 429, 434 (Tex. 2017) (citing Lips ky , 460 S.W.3d at 593 ; WFAA

- TV, Inc. v. McLem ore , 978 S. W.2d 568,
57 1 (Tex. 1998) ). “ Defamation per se refers to statements that are so o bviously harmful
th at general damages, such as mental anguish an d loss of reputation, are presumed. ” Lip sky , 460 S.W. 3d at 59 6

.

The first element , falsity, i s presum ed in case s involv ing pr ivate plaintiffs suing
nonmedia defendants

. S ee Fawcett v. G rosu , 498 S.W.3d 650 , 660

– 61 (Tex. App.

— Houston [14 th Dist.] 201 6, pet denied) (op. on reh ’ g) ; see also Texas Jewelers Ass ’ n v. Glynn , No. 03

- 17

- 00771

- CV, 2018 WL 53 05721, at * 4 n. 6 (Tex. A pp.

— Austin Oct. 26, 2018, no pet. ) (mem. op.)

. The second el ement , that the statements defamed the plaintiff, is also satisf ied here. A ppellants sent an email to their clients informing them that Corazza was no longer employed w it h the
clinic “ [ d ] ue to fi nancial discrepancies recently noted

. ” B ecause the email pr ovided no details,
the clients could draw their own conclusions regarding the nature of the “ financial
d iscrepancies , ” which could have been anything ranging from financ ia l misman agement to theft

. However , because the email cited the fi n ancial discrepanc ies as the reason why Co ra z za had
been fired from t he clinic, the clinic ’ s clients likely inferred that the issue was serious and that , even if Corazza had committed an a c t other than theft , the di screpancies nevertheless reflected negatively on Corazza ’ s professional abilities as an office manager and emp loyee

. Additi onally,10

th e email also accused Corazza of sending communications to clinic clients that were “ inaccurate
and not a refle ction of [th e clinic ’ s] values or intentions

. ” From this statement , the clinic ’ s cl ients could have further inferred that Corazza was d ishonest , thus making it more likely that the financial discrepancies that the clinic accused her of comm itting were s erious

. W e co nclude that the email provides clear and specific evidence that appella nts made statements that w ere defamatory per se. Se e id

. ( observing that “ [ a ] ccusing someone of a crime ” or making “ remarks that adversely reflect on a pers on ’ s f i tness to conduct his or her business or trade ” are considered
d efamatory per se ) ; see also G lynn , 2018 WL 5305721 , at *5 ( concluding that statem ents accusing plaintiff of theft or misappropriation of funds qualifie d as defamation per se) . Thus,
Cor azza d i d not have to present clear and specific evidence of the element of damage s
. See Lipsky , 460 S.W.3d at 5 96

.

The final element of Corazz a ’ s prima facie case is appellants ’ degree of fault.
B ecause Corazza is a private figure suing a nonmedia defendant , she must provide clear and specific evidence me rely that appellants acted with negligence. S ee id. a t 593 ; Hanco ck v. Variyam , 400 S.W.3d 59 , 65 n.7 (Tex. 2013)

. “Texas courts have defined negligence in the
defamation context a s the ‘failure to investigate the truth or fals i t y of a statement before publication, and [the] failure t o act as a reasonably prudent [pers on].’ ” Fawcett v. Rogers , 492 S.W.3d 18, 27 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) (alterations in original) (quoting Newspaper Holdings, Inc. v. Crazy Hot e l Assisted Living, Ltd. , 416 S.W.3d 71, 85 (Tex. App.

— Hou s ton [1st Dist.] 2013, pet. denied ) ); see Hoskins v. Fuchs , 517 S.W.3d 8 34, 843 (Tex. App.

— Fort Worth 2016, pet. denied)

.

Here, the primary basis of t he “ financial discrepa ncies ” refere nced in the ema il
was Corazza ’ s increasing her salary from $18 to $19 per hour. Corazza testified that when11

Zil kha

- Shohamy confronted her abo ut t he “ dollar raise , ” Corazza told her that they had “ talked
about ” it . Altho ugh no further testimony on th is ma tter was el icit ed, this testimony , when viewed in the light most favorable to Corazza, provides at least some evidence that the salary
increas e was authorized. If appellants had authorized the salary incre ase , or if they knew that they had g iven Corazza r eason to believ e that the salary increase was authorized, then it
would have been at least negligent for appellants to send their clients an e mail accusing Corazza
of “ financial discrepancies ” based on that salary increas e. See Van Der Linden v. Khan , 535 S.W.3d 179 , 20 0

– 02 (Tex. App.

— Fort Worth 2017, pet. denied) (explaining that evidence
that de fendant knew statement was fals e can also serve as evidence that defendant was at least negligent i n making statement). We con clude that on this record, Corazza has satisfied h er burden to establish a prima facie case for defamation

.

We overrule appellants ’ first issue.

Defenses
In their secon d issue, appellants assert that they are ent itled to dismissal because they est ablished by a preponderance of the eviden ce each of the essential elements of thei r defenses to defamation . Specifically, appellants claim t hat they established the defenses of fair comment upon the underlying facts , opinion, and truth

. 3

3 Appella nts also assert , for the fir st time on appeal, that Corazza ’ s claims are barred by the sta tute of limitations. See Tex. C iv. Prac. & Rem. Code § 16.002(a) ( providing that “ [ a ] person must bring suit for [de famation] no t later than one year after the day t he cause of action accrues ” )

. However, the statute of limitations is an affirmative defen se t hat must be pleaded and proven in the trial court

. See Tex. R. Civ. P. 94 ; Zorrilla v. Aypco Constr. II, LLC , 46 9 S.W.3d 143 , 155 (Tex. 2015) ; Zavala v. Franco , 622 S.W.3d 612 , 619 (Tex. Ap p.

— El Paso 2021, no pet. h.)

. Because appellants did not plea d li mitations in the court below, that defense has been waived. See Fawcett v. Grosu , 498 S.W.3d 650 , 663 (Tex. App.

— Houston [14 th Dist.] 2016, pet. denied) (op. on reh ’ g ).12

Fair comment pr ivilege

“ The fair comment privil ege is an affirmative def ense to a defamation action extending to publications that are ‘ reasonable and fair comment[s] on or criticism[s] of

. . . matter[s] of public concern published for general information. ’ ” Rosenthal , 529 S. W.3d at 434 (quoting Tex. Civ. P rac . & Rem. Code § 73.002(a), (b)(2) )

. However, t he defense is inapplicable
to nonmedia defendants such as appellants here

. See Casso v

. Brand , 776 S.W.2d 551 , 5 54 (Tex. 1989) ; see also Neely v. Wilson , 418 S.W.3d 52 , 56 (Tex. 2013) ( listing fair comment pr ivilege

a s defe nse available to media defendants)

. Accordingly, appellants would not be entitled to
dismissal based on this defense

. Opini on

“ [ S ] tatements that cannot be verified, as well as statements that cannot be understood to convey a verifi able fact, are opini ons
. ” Dallas Morning News, Inc. v. Tatum , 554 S.W.3d 614, 639 (Tex. 2018)

. “ [S]tatements that are not verifiable as f alse cannot form the basis of a defamation claim.” Neely , 418 S.W.3d at 62

. Whether Corazza was fired “ [ d ] ue to fin anci al discrepancies recently noted ” can be veri fied as either true or false based on the evidence presented and thus is not an opinion

. S ee Bentley v. Bunton , 94 S.W.3d 561 , 583

– 84 (Tex. 2002)

. Accordingly, appellants would not be entitled to dismissal base d on this defens e.

Truth

“ Truth is a de fense to all defamation suits. ” Neely , 418 S.W.3d at 56

. Under this defense, t he defenda nt is required to prove that the statement is “ substantially true

. ” Id

. at 62

.

“ Minor inaccuracies do not amount to fal sity so long as ‘ t he substance, the gist, the sting, of the libelous charge be justifi ed. ’ ” Masson v. New Yorker Mag

. , Inc. , 501 U.S. 496 , 517 (1 991)

. In13

other words, “ the substantial truth doctrine precludes liability for a publication that correctly

co nveys a story ’ s ‘ g ist ’ or ‘ sting ’ although err ing in the details

. ” Turner v. KTRK Television , Inc. , 38 S.W.3d 103 , 115 (Tex. 2000 ) ; see McIlvain v. Jacobs , 794 S.W.2d 14, 15

– 16 (Tex. 1990)

. Conversely , a publication may contain statements that are correc t but “ nevertheles s convey a substantially fal se and defamatory im pression by omitting material facts or suggestively juxtaposing true facts

. ” Turner , 38 S.W.3d at 115 ; see also Huckabee v. Time Warner E nt

. Co. , 19 S.W.3d 413, 425 (Tex. 2000) (“A broadcas ter ’ s omission of facts may be actionable if i t so distorts the viewers ’ percep tion that they receive a substantially fal se impression of the event.”)

. We are to construe the publication “ as a whole in light of the surrounding circumstances
based upo n how a person of ordina ry intelligence would percei ve it

. ” Turner , 38 S.W.3d at 114

.

“ Consistent with this approach, under t he ‘ substantial truth doctrine ’ a publication ’ s truth or falsity depends on whether the publication ‘ taken as a whole is more damaging to the plaintif f ’ s reputation than a truthful [ publication] would have been. ’ ” Rosenthal , 529 S.W.3d at 434 (quoting KBM T Operating Co. v. Toledo , 492 S.W.3d 710, 7 14 (Tex. 2016) ).

As discussed above, the email stated that Corazza was “ no longer emplo yed ” with
the clinic “ [d]ue to financial discrepa ncies rece ntly noted. ” The email did not specify the nature
of the finan cial discrepancies, but a person of ordinary intelligence would likely conclude that the discrepancies were serious enough to warrant Corazza ’ s termination from the clinic. Moreover, because the same email also accused Corazza of sending communications to clinic clients that were “inaccurate and not a reflection of [the clinic’s] values or intentions , ” a
person of ordinary intelligence would likely conclude that appellants believed Cor azza to be
dishones t , which would cast the unspecified “ financial discre pancies ” in a n even more ne gative
and serious light.14 However, based on the evidence presented, the truth was more complicated than

t he email implied. Coraz za testified that before she was fired, she had decided to leave the clinic due to disagreements t hat she had with Shohamy regarding business decisions that he had made

. O n the same day that she gave the clinic her two wee ks ’ notic e, she was told that she was fired
effective immediat ely , purportedly because of a “ dollar raise ” that Zilkha

- Shohamy claimed

was not authorize d but that Corazz a claimed th ey had “ talked about ” earlier. The email did not include any of these details, whic h would hav e provided imp ortant context to the unspec ified

“ financial discrepancies ” that appellants had accused Coraz za of committing

. Based o n th e limited evidence before us , w e cannot conclude that the email is as or less damaging to
Corazza ’ s reputa ti on than a truthful public ation would have been. Acco rdingly, appellants failed

to prove by a preponderance of the evidence that th e email was “ substantially true ” so as to entitle them to dismissal under the TCPA.

We overr ule appellants ’ second issue.

CONCLUSION
We affirm t h e district court ’ s order den ying appellant s ’ motion to dismiss

.

___________ ____________________________ ___ Gisela D. Triana , Just ice
Be fore Justic es Goodwin, Triana, and Smit h
Affirmed
Filed: July 16, 2021