## In the Court of Appeals Second Appellate District of Texa s at F ort Worth

___________________________ No. 02

- 22

- 00281

- CV

___________________________

On Appeal from the 17th District Court Ta rrant County, Texas Trial Court No. 017

- 330567

- 21

Before Ke rr, Bi rdwe ll, and Walker, JJ. Memorandum Opinion by Justice Kerr 

### J ONATHAN 

### S TICKLAND AND 

### J ACKIE 

### S CHLEGEL 

### , T EXANS FOR 

### V ACCINE 

### F REEDOM 

### , AND 

### T EXANS FOR 

### V ACCINE 

### C HOICE 

### PAC , A ppellants

V


### . J ACKIE 

### S CHLEGEL AND 

### T EXANS FOR 

### V ACCINE 

### C HOICE 

### , Appe llees2 MEMORANDUM OPINION
I
. Introduc tion
This case involves two set s of claims against different defendants. First, Texa ns for Vaccin e C hoice ( Choice

- C4 ) , a 501 (c) (4) nonprofit corporation , sued T exans for Vaccine Freedom ( Freedom

- C3 ) , a 501 (c) (3) nonprofit corpora tion ; Tex ans for
Va ccine Choice Pol itical Action Committee (the PAC) ; and Jackie S ch legel (collectively, the Sch legel Def end ants) to stop them from controlling Choice

- C4 ’ s social me dia , m isusing its confidential infor mation, and sp e aking on Choice

- C4 ’ s be half, among other things

. Second, Schlegel sued Jonathan Stick land as a counte r

- defe nd ant , alleging that
he had def amed her ; he moved to dismiss that clai m under the T e xas Ci t iz ens Participation Act (TCPA)

. 1 See T ex. Civ. Prac. & Rem. Code Ann. § § 27.001

– .011. In
her TCPA resp ons e, Schlegel conceded , fo r purpos es o f Stickland ’ s TCP A motion,

1 Und er the TCPA , the first step is for the mo va nt to sho w that the law su it is

“ ba sed on or i s i n resp onse to ” the movant ’ s exercise of the right s of free spee ch, petit ion, o r as soc iation , “ or ari s e s fr om any act o f that party i n fu r ther ance o f t he p arty ’ s communica tion or conduct desc ribed by Section 2 7 .010( b)

. ” Tex. Civ. Pr ac. & Re m. Code An n. § § 27.003( a) , .005(b)

. No one argues that Section 2 7.010( b ) ap pl ies. If a TC PA movant satis fies its firs t

- step burden , and n o exemption app l ie s , see C

astlema n v. I nt

ernet Money Ltd. , 546 S.W.3d 684, 688 (Tex. 2018) , then to a void dism i ssal, the non mova nt m us t e s tab lis h by clear a nd spec ific evidence a prima facie
case f o r each ess ential element of the cla i m in q u estion. Tex. C i v. Prac. & Rem. Co de Ann. § 27.00 5 (b)

– ( c)

. I f the no n movant meets this burd en, then the movant may still obtain a dismissal if i t e s ta blish es an affirmative defense or other g rounds on whi ch it is entitled to judgment as a matter o f law

. I d

. § 27.005(d).3 that she wa s a limited

- purpose public figure and that the TCPA applied to her
de f amation claim

. Follo w ing Stickland ’ s example, the Schlegel Defendant s then moved to dis miss
some of Choice

- C4 ’ s claim s under the TCPA

. S e e id. After t he trial court deni ed both
TC PA motions , Stickla nd and the Schl egel Defen d ants separately brought timely interlocutory appeals

. S e e id. § § 27.008 (b) , 51.0 14(a) ( 12).
W e conc lude that Schlegel failed to meet her prima fa cie burd en , sustain
Stickland ’ s second of three issues, reverse the tr ia l co u rt ’ s order denying his m otion , and render judgment dismissing S ch legel ’ s defamation claim against him

. Because
Sti ck land ’ s second issue is dis positive, we do not reach his remaining issue s r egarding
TCPA evidenc e and whether he establish ed an affirmative defense

. See Tex. R. App.
P. 47.1.
We overrule the S chlegel Defendant s ’ first two issues because

— as t o Schlegel
and Freedom

- C3

— their TCPA motion was untim ely , and as to t he PAC, Cho ice

- C4 ’ s claims fall under a TCPA exe mption . Based on this resolutio n , we d o not reach their
third i ssue , in which they challenge C hoice

- C4 ’ s ab ility to show a prima fa cie case for
each element of its claims. S ee id. We affirm the trial court ’ s ord er denying the Schlegel
Defendants ’ TC PA motion and r emand the case to the trial co urt to deter min e attorney ’ s fee s , costs, and potential sanctions , s ee T ex. Civ. Prac. & Rem. Code Ann. § 27.009 , and deny Choice

- C4 ’ s cross

- point request for s anctions un de r Ru le of4 Appellat e Procedure 45 because , as set out below, the Sch legel D efendants ’ appeal
contain s at lea st one arguable iss ue . II. Backg round
We compile below the relevant facts that the parties s upplie d to the trial court

. A. Choice

- C4 , Freedom

- C3 , and th e PAC Schlegel and Rebecca Har dy, a mong ot hers, founded the entities in this cas e . Hardy f ile d the paper w ork to create the PAC i n July 201 5 and Choice

- C4 i n Augu st 2015

. The day after its formation, Choice

- C4 o pen ed a Frost Bank a ccount with a $60 deposit ; it even tually paid payro ll f rom that acco unt
. A litt le over a year later, Hardy filed the paperwork to create Freedom

- C3 and filed a “ consent to use sim ilar

na me ” because Freedom

- C3 was the “ second organiza t ion with a simi lar purpose consisting of a similar Board of Di rectors. ”
Choice

- C4 , as a 501 (c) (4) nonprofit corporation, took part in l obb ying a c tivitie s

w hile Freedom

- C3 , because of it s 501 (c ) (3 ) con straints, lim ite d its activities t o

au thorized educatio nal efforts. 2 Sch legel began serving as Choice

- C4 ’ s exec utive
director in late 2016 and work ed for bo th Choice

- C4 and Freedom

- C3

. In April 2021,

2 In their cro ss

- ap pellant s ’ brief, the Schlegel Defendants explain that
c o n t r i b u t i o n s t o a 501 (c) (3) charitable organ ization like Fr eed om

- C3 are tax

deductible , in c ont rast to contr ibutions to a 501 (c) (4) soci al

- welfa re corpo ration like Choice

- C4 , whi ch ar e not , a nd that a 501 (c) (4 ) organization may engage in poli tical lobbying , while a 501 (c) ( 3) organization may not
. See generally 26 U.S.C.A. § 5 01 (c) (3)

– (4).5 H ardy, w ho had been th e PAC ’ s treasure r, appointed S chle gel as the PAC ’ s treasurer , and Schleg el signed employ ment agreement s with Choice

- C 4

. Between 2015 and 2021, Choice

- C4 ’ s funds g rew substa nt ially

. Funds were internally transferred to Choice

- C4 ’ s accoun t but

— ex cept for payi ng debit items

— funds were not transferre d f rom Choice

- C4 ’ s account unt il November 18 , 2 021.
B
. T ra ns fer of Choice

- C4 ’ s funds to Fr eed om - C3
On November 16, 2021, Sch l e gel asked Heather Jones, Choice

- C4 ’ s offic e
manager, for infor mation about Choice

- C4 and Freedom

- C3 ’ s dire c tors, and Jo nes pointed her to each organizat ion ’ s b ook s . At that time, S chlegel sat on Choice

- C4 ’ s boa rd with Hardy and Chr istine Welbo r n ; Freedom

- C3 ’ s board comprised S chlegel,
Har dy, and Joe l S t arnes . According to Jones, after Schl eg el l ooked at Freedom

- C3 ’ s directors lis t , she mused aloud that she “ would a t least have [ Freedom

- C3 ]. ” The next d ay (November 1 7) , Sch lege l , Hardy , Welborn , an d Starnes s cheduled a November
19 board meeting for both ent ities t o address “ concern s . ” According t o Har dy, th e

m eeting ’ s goal was to “ redirect ” Schlegel in her work with Matt Lang ston, a consultant. 3

3 In its first amend ed petition, Choice

- C4 alleged t hat in the fall of 2021, Cho i ce
- C4 and Free dom

- C 3 staff rep orted to both organizati ons ’ boards concer ns about Schlegel ’ s behavior, her authorit y, and t he “ ne w ” direct ion in w hich she was tak ing them , which inclu ded u nauthoriz ed expansions o u tside o f Texas, “ a partisan withd raw a l from criticism of R epubl ica n elected official s, ” a refusal to call for a fourth special legislative session to a ddress vaccine pol icy , a nd “ th e outsou r cing of management to a t hird

- p arty contractor. ”6 On November 18 , at 3:28 p.m., 4 Schl egel emailed Lan gston, stating , I know we have discuss ed usi ng t he 501 c3 t o expand nationa ll y. And sinc e we have wrapped up legi slation and th ere are no foreseeab le special
se ssions, I think it would be wise to tr ansfe r 80% of the funds from the 501C4 to t he 501C3 which e mploy s the sta ff and covers the operat ing
ex pens es. Typi cally, in the past [ Har dy] mo ve d funds as needed, with n o policy or st ructure in place. Ho wever, I thin k it should be a standing policy that after the l egislative session, remaining C4 money is used t o develop the C3. Current C4 is 145, 193.17 [.] T ransfe r to C3 will be 116, 154 .54 [

. ] This will also create a good push for legislative fundrais ing as we can communicate the need for funds to fig ht at the Capitol

. A few minutes later, L angston told her that sounded good.
A t some poi nt that afternoon, Schlegel tex ted J one s for help l ogging into
Choice

- C4 ’ s Frost account. When Jones replied , Schlegel told her that she had managed to log in on her phone and told J ones , “ I can ’ t afford a [F]rost lockout today

. ” Later , Schlegel c alled Fr ost , w h ich also held the Freedom

- C3 and PAC

a ccounts , and as ked the bank to transfer $ 116 ,154.54

— 80% of Choice

- C4 ’ s accoun t bal ance

— in to Freedom

- C3 ’ s ac count. Choice

- C4 filed as an exhibit S ch legel ’s
recorded a nd tra nscribed conv er sation with th e F ros t representative

.

4 Choice

- C4 ’ s evidence showed tha t wh en Schlegel began drafti ng the email at 11:2 6 a.m. , she firs t addressed Langston and S t arnes b efore changing the m essag e to just Langston , a t 1 1:30 a .m. A t 12 :34 p. m., she cha nged the message again to just Starnes before cha nging i t back to L angston at 2:18 p .m . At 2:3 8 p .m ., she changed it from L a n gston to Choice

- C4

. U lt imately, she ad dre ss ed t he email to Langston.7 Schlegel told Frost ’ s repres entative, “ I am ne ed ing t o make a transfe r in between two of my account s and on

- l ine there is a l imit and I w as wo nder ing how I

co uld go about t hat. ” F rost ’ s represe ntative noted the $25,00 0 m aximum for an on

li ne trans fer b ut noted that a larg er trans fer could be accomplished o ver th e phone.
Durin g th e con versation, Schlegel stated, “ So we reg ularly transfer funds , ” an d “ [ W] e had decided on [the $ 116 ,154.54 tr ansfer ] number base d o n 80 per ce nt of the basing
and the cas h on hand

. ” The Fros t representat ive replie d that her su pervi sors wan ted
to know th e nature of the payment for the account ’ s secu rity “ because it ’ s [Frost ’ s]
first t im e tr ansferring to this particu lar ac cou nt. ” Schlege l t old her that it was “ to support our educational foundation , ” comp lim ent ing the bank o n its secur ity

. F rost ’ s represen t ative confirme d and then completed the transfer

. Jo nes , who had been monitoring Choice

- C4 ’ s bank account after Schleg el ’ s

text , saw that s hortly after 5 p .m ., Choice

- C4 ’ s account drop ped to $2 9,038. She
checked Freedom

- C3 ’ s acc ount an d saw the $116,154.54 t ransfer , which she said “ w as unexpect ed a nd completely ou t

- of

- the

- ordinary ” be ca use there was no fin ancial

reason

— su ch as payroll

— for such a large transfer. Jones r eported the transfe r to Hardy, who asked her to c ontact Frost f or an ex planation a nd to reverse the transfer

. Li ke S c hlegel ’ s conversation wi th Frost, Jones ’ s c onvers ation was also recorded
and trans cribed , and Choice

- C4 filed i t a s an exhibit

. Jones first asked the Frost representative if she could undo or reverse th e tran sfer , and afte r some back and forth, the transfer wa s u ltimately reversed that night

.8 C. The trans fer ’ s aftermath
Aft er the trans fe r, Hardy and Welborn conducte d a telephonic Choice

C4 board meetin g at which , accor d ing to Hardy, t hey fired Schle g el an d re moved he r from the boa rd

. 5 The next morni ng, Choice

- C4 ’ s couns el , Emily Cook, emailed Schlegel , c opying Starnes , to inform Schlegel that “ after the criminal activi ty that transpired last night regarding the [ Choice

- C4 ] b ank acco unt , ” Hardy and Welborn
h a d removed Sc hle gel as Choice

- C4 ’ s exec utive dir ector and had removed her fro m Choice

- C4 ’ s board. Cook tol d Schlegel tha t the y would discuss “ next step s to effectuate a mediation between the two entities and personnel ” at the scheduled jo i nt board meeting t ha t afterno on. A fter the meeting, Schlegel conta cted JoAnn Fleming, who operat ed a q uar terly
grassroo ts summit , to tell her that Choice

- C4 ’ s information in th e summit ’s booklets
and PowerPoint slides w ould h av e t o be chan ged before th at we eke nd ’ s upcoming

su mm it , one that involved 200 leaders from across Texas

. 6 Fleming then contacted Schlegel ’ s friend , Teresa Beck meyer , a seni or politic al

- donor advisor , and “let [her]
know abo ut what was g oing on ” with the summit m ate ri als

. According to Be ckmeyer,

5 The Sc h legel Defendants contend that Hardy and Welborn “ purportedly term inated ” Sch l e g el as Choice

- C4 ’ s e xecutive director

.
6 According to a subsequent letter from Co o k to Sch legel, duri n g the November 19, 2021 meeting, Schlegel “ agreed to identify [her]self as [Free dom

- C 3 ] during ” the grassroots summit , agreed not to hold herself out at the event as speaking on behalf of Choice

- C4 , and agree d to con fidentiality about t he meeting. B ut the record contains no such written agreement

.9 t h ey h ad t o cover over Schlegel ’ s nam e in t he booklet, which caused some mur muring
but not a lot of discussion.
A t the summit , Schleg el told Beckmeyer that Choice

- C4 ’ s boa rd had asked her

to take a lea ve of absence. Schle gel also told her “ that she ha d transferred m oney f

rom [ Choice

- C4 ] to [ Freedom

- C3 ] , and that they were sa ying that she had stole n
money , ” b ut that , in Schlegel ’ s view, she did not think she ha d s tol en money . Beckmeye r s pec ulated that Schlegel had spoken w ith seve ra l people at the summit. 7
Be ckmeyer w as also friends wi th S tic kland

— another political

- donor adv isor

—

a nd Starnes

. S he s pent five hours on the phone with Stickland aft er he cal led he r during her drive home from the su mmi t the followin g Monday

. Beck mey er did not recall everything she talk ed abou t with Stickland durin g that extensive convers ation
but not ed that as they talked about different T exas groups that h ad co m plained to her
about Sti c kland ’ s intr uding into their business , Stickland said, in a matter

- of

- fact

manner, “ H ave you heard [ Choice

- C 4 ] is having a probl em, [ Schlegel ] stol e mo ney. ”
After Stickland said this about Schlegel, Bec k mey er asked him, “ [D]o [y]o u know th a t for a fact ? ” Stick land replied, “ Well, no, [ Choice

- C4 ’ s] board has told me
this. ” She then asked him if he had contacted t he bo ar d fo r pr oof, an d he said that he
had not. Beckmeyer then as ked if he had r eached out to Schlegel f or t he facts becaus e

7 When B eckmeyer spoke with Schlegel at the summit about the preceding da y s ’ events, F l eming , Jill G l ove r, a nd on e or tw o others were present, and “ there were people every where

. ”10 Stickland and Schlegel had “ always been s uch good friends , ” and he said that he had
not done that e i ther. Beckmey e r t old Sti ckland that he needed to cont act Schlegel and the boa rd to
g et all th e fac ts “ before [he is] telling this to people. ” Stickland retorted that he was not going to contact anyone because Beckmeye r h ad just told h im tha t people were complaining ab out his “ getting i nt o their busin ess. ” 8 B ec kmeyer state d in her
d e position that she could not understand why Stickland would n ot reach out to Sch legel, w hom he had helpe d to build Choice

- C4

. She did not t ell Stickland that she
alread y knew that Choice

- C4 ’ s board had accused Schl e gel of ste aling money , be c a use Sc h legel had told her tha t “ they were going to press charges or s omething on her if
she told peo ple about it

. ” Beckm eyer had no personal knowledge that Stickland told anyone other than her that Choice

- C4 ’ s board had tol d hi m that S chl egel had s tole n

m o ney. After sh e arrived home , Beckmeyer spo ke w ith Starnes , who told her that , a t the joint board me eting , Hardy and Welborn had t ol d Schleg el t hat in their vie w, she had stolen the money

. H e told Beckmeyer, “ [ T

] hey ’ r e sayin g she stole money , but sh e

8 Beck meyer n ote d in h er depositio n that as donor advisors, s he and Stickland were to recommend “ whether to fina ncially support a group , ” n ot to run a group themselve s.11 was tra ns ferring from one entity to another entity

. ” 9 Starnes did not tell Beckmey er anyth ing she had not already heard

. W hi le Beckmey er w as on the phone with Starnes , he received Choice

- C4 ’ s November 22 demand letter f rom Co o k t o Sc hlegel ; he read portions of it to Beckmeyer and forwarded it to he r t he next day

. T h at letter recited the “ possible ci vil
violations regarding the tran sfer of funds on November 18, 2021 , ” including B usiness
O rganizati ons Co d e violations related t o tran sfer r ing 80% of Choice

- C4 ’ s asse ts without due consideration for o th er expense s , which “ would have li kel y render ed the
corp orati on insolvent , ” as well as other fiduciary

- duty breaches and civil con spir acy. T he let te r stated that despit e Schlegel ’ s attempt to “ paper ” reasons for the transfer earlier that day i n her email to Langston , “ cre dible evi denc e suggests [she] ini tiated the
bank transfe r from an entity [s he] reasonably anticipat ed b eing vot ed off of withi n th e

n ext 24 hours at the r egularly sche dul ed board meeting to an e ntity [she was]
confident [she] h ad governance control of. ”
Cook ’ s letter also a ccused Schlegel of having breac hed the ir November
19 agreement to ide n tify herself only with Freedom

- C 3 dur i ng the summi t , sta ting

9 W ithout cit ing authority, the Sch legel Defendants as sert t hat the ty pe o f tr a nsfer that Sch leg el at tem pted “ is permissible

. ” Choice

- C4 , on the other hand, states that be cause of Freedom

- C3 ’ s li mitati ons as an educational organi zation and its ability to raise tax

- deduc tible funds, “ funds never f lo wed fr om [ C hoice

- C4 ] t o [ F ree dom

C3 ] , ” and it asserts t hat Sc hlegel needed board approval for such a significant transfer from one entity to another and that th e t ype of trans fer was unp recede nted, referring us to Choice

- C4 ’ s bank statements

.12 that event

- related info r mation showed that she “ did not change [her] PowerPoint
slid es to not r e flect [ Choice

- C4 ], held [her] self out as spe aking on behalf of [ Choice

C4 ] after [her] termination o f emp loyment from that entity [, ] and did not spea k o n beh al f of [ Free dom

- C3 ] a s agre ed. ” 10 Cook stated that Choice

- C4 had “ he a rd several reports of the breaking of the c onfidentiality agreement from F riday ” and that b ased

on those events, Choice

- C4 ’ s bo ard felt “ strong ly that r eco n c il ia tion and
reinstatement is lik ely i m possible. ”
Choice

- C 4 offered Schlegel on e y ea r ’ s severance in exchange for her signing

non dis closure a nd noncompete agreement s , as well as her immediate resi gnation from
Freedom

- C3 ’ s b oard ; gave her unti l 1 0 a. m . on Nov em be r 29 to acce pt the ter ms ; and
asked Sch legel to retu rn Choice

- C4 ’ s intellect ual property with in 15 business days

. Cook ’ s demand letter also r ecommended that Schlegel seek legal counsel to “ provide

an aven ue where the two boards an d res p e ctive s taff would not h ave to engage wit h

eac h other, whic h woul d be ad visable given the feel ings, heartache[ ,] and personal relationships involved. ” After Beckmeyer spoke with S t arnes , she exchanged texts with Stick land

. The

co n ve rs atio n beg an with Be ck me yer ’ s stating that not hing on Choi ce
- C4 ’ s ( or Freedom

- C3 ’ s ) 11 Fa cebook f eed had led her to believe that “ the y are drif ting to the

10 As we noted , the November 19 agreement is not in th e appellate record

.
11 I t is un cl ear whether Beckmeyer meant Choice

- C4 or Freedom

- C3 because she wrote “ TFV , ” a nd th rough ou t t he ca se the parties have r efer red to the13 wrong side

. ” Stickland the n told her he was referring to Choi ce
- C4 ’ s emails and
Facebook ads

. Beckm eyer op ine d that they would never win when they were

“ devouri n g each other! ”
When Stickland st ated, “ No one is devo uring [Schlegel .] They were trying to help her and give her time to get he r life s t raight[.] They are still trying[ .] T h o s e

women love e ach other[,] ” Beckmeyer replied, “ Yeah, tell me that a f ter reading the civil suit she was given thi s eve ning

. ” She added, “ This [Schlegel] thing is about to split the grassroots wide ope n. Mark m y words. I hope those invo lved c an l i v e w ith

t hemselv es afterwards. ” She told Stickland that she ha d been talking with Starnes
when he received the demand letter and that it was “ horrible. ” She then asked
Stickland why , if Choice

- C4 ’ s em ai l s and F acebook ads had bothered him , he h ad no t called Schl e gel. Stickland replied that he had t alked with Sc hlegel months a go about
Choice

- C4 ’ s going in a dif ferent direction.
Stic kland as ked Beck m eyer if she had spoken to Welborn o r Hardy ; she hadn ’ t yet
. S tic k lan d then told her, “ Maybe ask [Sta rnes] why him and his wife blocked me and haven ’ t spoken one word to me . ” Beckmeyer replied, “ That ’ s not my b usiness. ”
Stickland r esponded , “ I ’ m just saying, the people talking ab o ut al l of th i s don ’ t see m

to b e [ Hardy] and the rest, ” and he said that he was “ told [ undescribed ] things ” on the

organizat ion s as T F VC and T FV F. To mak e the distinctions ho pefully clearer, w e have c hosen “ Choice

- C4 ” and “ F r eed om

- C3 ” as shorthand refer ences .14 morning of the board meeting

. He also noted that Starn es had talk ed to many people. Beckmeyer re plied , “ So meone ’ s li fe w as ju st destroyed. Do y ou n ot g e t that? ”
Sticklan d told Beckmeyer, If anyone is trying to des troy someone I’d like to know. You’re tell ing me thing [ s] [I] haven’t heard. Civil s uit etc[ .] I was told she was offered a year of full sa la ry to take off and deal with family[. ] T h at’ s hardly destroying someone ’s life if true[.] If there’s more to the st ory then I’d be happy to know it. I’m not for de stroying or devouring [Schlegel ] . I’m al so not O K with ruin in g a grassroots org[.] B ec kmey er rep li ed, “ To clarify [,] the r e w e r e a bunch of demands and if s he doesn ’ t comply by Monday, they will file a civil suit against her. ”
S tickland c autioned Beckmeyer to be careful, stating, “ [ T] he women on the
other side are not se lfi sh mon st ers [ .] . . . I hi ghl y doubt the y t o ok t h is lightly[.] Especially if t hey are filing suits, that’s a big deal. If they don’t have hard proof [,] they

are fools[.] And I don’t believe they are fools[.]” When Beckmeyer asked for an explanation , he said, “It means I’m sure [Star n e s ] has o ne side and we should gather facts from all places. Not fair to as sume he’s right. We don’t know what he knows or doesn’t know[.] ” Four days later, Starnes told Beckmeyer , “ We hired [att orney] Tim
D avi s . He is good. ”
On November 2 9, 2 021 , Choic e
- C4 sued Schlegel and Freedom

- C3 12 and

s ought a temporary restraining or der an d temporary and permanent injunctive relief ,

12 In its original pe tition , Choice

- C4 also sued En gage Right , a consulting fi rm, an d La ng sto n , En gage Right ’ s age nt , b ut la ter dr opped them fro m th e l awsuit

.15 as well as damag es for tradema r k and logo infringement , trade

- s ecrets and common

l aw misappropriat ion , and to rt ious i nterference with pro spective business relations. On December 1, t he trial court granted the T R O in part
. D. Choice

- C4 ’ s amended pet ition
Choice

- C4 amended its petitio n o n Ja n u ary 31, 2022 , ad ding the P AC t o t he
la

ws u it

. Choice

- C4 dropped its trade

- secret and common

- law misap propriat ion claims but kept its trademark

- a nd lo go
- infringement claims ; it added claims agains t all the
Sch l e ge l De fe nd ants for tortious interf eren ce wi th bu s iness relati ons and co ntract s and claim s against Schlege l for breach es of contract and fiduciary dut y . Choice

C4 also sought decl aratory relief regarding the exclus ive con tinued use o f Choice

- C4 ’ s name and lo go , control of t he PA C, an d return of dona tions, among other t hings.
E
. Schlegel Defenda nts ’ coun ter clai m ; Schlegel ’ s def amation claim
The Schleg el Defendants filed a n answer o n Febru ary 11, 2022 , and
counterclaim ed f or a decla ratory judgment th at Sch l egel ’ s r emov al fr om Ch o ice

- C4 ’ s bo a rd was ineffective, see Tex. Civ. Prac. & Rem. Code Ann. § 37.00 3 , and for harmful

acce ss by comput er, see id. § 1 43.00 1. S chlegel added Stick land as a counte r

- de fendant ,

a llegi ng defamatio n base d on his telling Be ck mey er tha t Schlegel “ stole money

. ” Schlegel also alleged that Stickland had made o ther defamatory comments, stating,
O n in f ormation and bel ief, Mr. Stickl and has m ade similar defa matory comments to nu merous other i nd ivi du a ls, i ncluding c urrent, an d poten tial , donor s to [ Choice

- C4 ] and [ Freedom

- C3 ] as well as Texan g ras sroots orga nizers and supporte rs. For example, there was a meeting of a dozen or so Texa s grassroots leaders in D ecember 2021. D ur ing16 that meeting, the a t t en dees w ere aske d whether any o f t h e m had heard that Ms. Schlegel had stolen money. All the attend ees confirmed that [they ] had hea rd those a ccusations. Many of th ose atten dees heard the

“ s to le money ” accusations from Stic kland or hi s all ies. [ 13 ] Sh e also alleged that Sti ckland tol d Julie M cCarty, a nother grassroots organizer, that
she stole money f rom Choice

- C4 , and she in clu ded a screen shot of an undated McCarty Facebook p ost : [T] here ’ s a lot to this st ory tha t h as not come out ye t. F or st arter s , Jackie stole over $1 0 0,00 0 from [ Choice

- C4 ], she was plannin g to give an aw ar d to Abbot t, and she was telling her st aff that g ras sroots are doing it all wrong and need to work with the es t ablish ment. The staf f was s o alar med they asked Reb ecca [H ar dy] to step in and help. Jackie h as gon e o ff the de e p end. I t ’ s sad. Wha t is especially sad is that she ’ s taking good but de ceived p eople wit h her. I stand with Jonathan and o thers w ho are tried and t rue frie nds and patriot s . The people now a dvisi ng J ack ie are w ell known for operat ing wit h a “ the ends justifies the means, ” any thing

goes mentality. I know them well, and it ’ s not the first time we ’ ve butted heads. Please know that Jackie fired t he consultant she was paying $15 0 /m o as a to ken payment and hir ed these guys who are charging he r $10,00 0/m o . Schlegel alleged t hat “ [t] he reference to ‘ Jackie ’ ” meant her, and the reference to

“

Jo nathan ” meant Stickland. 14

13 During her deposit ion, Beckmeyer state d tha t a t a mi d

- December 20 2 1 g rass roots meetin g , she told a dozen people that she did n ot believe that Sch legel had stolen mon ey .
14 During her depositio n, Beckmey er t es tified that McCart y h ad made a Facebook post abo ut how Schlege l stole $100,000. Beckm eye r did not respond to the pos t but, although it s hocked her, she did not think it was “ right , wro n g, or whate ver, ” becaus e M cCarty w as “ known for do ing tho se kin ds of posts

. ”17 F . Interim activities
In mid

- M arch 20 22 , Beckmey er , Fleming, a nd Glov e r m et wi th Cho ice

- C4 ’ s board to hea r its side of the story. Har dy recorded the meeting but , altho ugh it was
transcribe d , the only spea ker identifie d was a “ Mr. O l cott ” ; th e ot her s showed up as

“ female speaker. ” Either Wel born or Hard y s aid the foll owing:

• “ W e were the rest of the C4 board. We were not contacted , and all of a sud den this money moves when she knows that we ’ re a bout to have a board meetin g. I t l oo ks rea lly bad from our perspectiv e ” ;

• Hardy had moved money from the PAC to Choi ce
- C4 “ regularly , ” with legal
a dvic e ;

• T here w as a “ hu ge differenc e ” between moving money from the PAC and moving money from a “ C4 to C3 ” ; a nd

• T hey h ad intended to o ffer Schleg el a year of bereavement leave at the November 19 meeting becaus e they thought Sc h legel was making bad deci sions whil e grieving her mother ’ s death. Beckmeyer agreed in her deposition that Schl e gel had in itia ted t h e mon ey transfer
from Choice

- C4 to Freedom

- C3 and that wh ether she was authorized to do s o was disputed

. G
. TCPA motions
On April 4, 2022, Stickland moved to dismiss Schlegel ’ s d ef amation clai m , and

a few days later, on A pri l 12, t h e Schlegel Defendants mo ved to dismiss mo s t of18 Choice

- C4 ’ s c laims , 15 arguing that they were based on and in respo nse to Schlegel ’ s right s of free spe ech an d association

. On May 24, Sc h legel filed an amend ed petit ion and h er r esponse to Stickland ’ s TC PA m otion

. To that re sponse she attache d a copy of her amended petition , a n excerpt from the transcr ip tion of Beckmeyer ’ s Ma rch mee ting with Choice

- C4 ’ s b o ard , he r uns worn declaration , an d exce rpt s from Beckme yer ’ s depos i tion. Stickland
filed a T CPA reply on May 27.
H
. May 31, 20 22 hearing
The trial court heard argument first on the Schl eg el Defendants ’ motion, then

on Stickland ’ s .

a. The Schlegel Defenda n ts ’ TC PA mo tion
T he Sch legel Defendants argu ed that their April 12 motion was timely because
Choice

- C4 never served them , tha t they appeared wh e n they answered in F ebruary , and t hat their activities before answer ing were in sufficient to co ns ti tute an
appe a ran ce. They also argued that n o TCPA exemptions a pplied.
Choice

- C4 replied that on December 1, the Schlegel Defenda nts ’ a ttorne y

“ argued at the [ TR O ] hea ring , and then he enter ed an agreed TRO, ” thus entering an
appearance . Cho ice

- C 4 con t ended that filing its amend ed pet ition on January

15 Schlegel ’ s c ounsel clarified at the TCPA hearing that she did not see k to dismi ss Choice

- C4 ’ s cla im s relating to d isc losure an d f ailu re to return co nfidential informati on as a breach of fiduci ary duty or declarations 5 an d 6 r el atin g to the r e tu rn of ta ngible property and d onations.19 31 triggered the 60

- day TCPA deadline, which en ded on April 1. Choice

- C4 conceded
that the PAC , a new addition , appeared on February 12 and thus h ad until A pril 13 to
file its TCPA moti on. Cho ice

- C4 further argued tha t this was an intern al corporate
di spute to which the TCPA did not ap ply , that Schlegel ’ s a greemen ts with Choice

C4 placed the claims under TCPA exemptions, and that Choice

- C4 had met its pri ma facie burde n. b. Sti ckland ’ s TCPA motion
Sticklan d informed the tri al court th at S chlegel h ad conceded that the

s tatements invo lved a matter of public concern and that she was a public fi gur e , shifting the burden to her

. He arg ue d t hat Sc hlegel ’ s response contained a n insufficient record to sup port her prima facie burden , part icularly compared to the

“ th ousand pages of evidence ” attached to Choice

- C4 ’ s respo nse to the Schlegel
Def enda nts ’ TCPA motion. 16
Sticklan d ar gue d, am ong ot her things, that his statem ent to Beckmeyer was substantially t rue because Sch legel had transfe r r ed the m oney and lacked any facts to prove otherwise

. He also stated tha t as to th e McCarty Facebook post, nothing in it

16 Stickland ’s counse l told the tri al court tha t he had e xpected to see aff idavits from the people who had all eged ly said that Stic kland told them t hat Schleg el had stolen money bu t had inst ea d r ece ived Schlegel ’ s f i rst amended petition , six or seven pages of transcript “ f rom a recorded boa rd meeting t hat ’ s no t very rel eva nt, ” and an af f ida vit from Schlegel that did n ot mention anythi ng about Stic kland ’ s statem ents and that “ look[ed ] lik e it wa s d raf ted for a differen t t ype of la wsuit, different type of claim

. ”20 sug gest ed that Stickl and had told McCarty anythi ng . He argued, “ There ’ s no [ ‘ ] he said/[s]he said. [ ’ ] There ’ s not even a [ ‘ ] he said [ ’ ] here. ”
Schl egel rep lied that the theft allegation was fal se because Hard y and Welborn
would not have offere d h er a ye ar ’ s severa nce otherwise , 17 a n d she relied on the

amen ded petition ’ s allegations about what Sti ckland knew.
III. Di scu ssion On appeal fro m the denial of his TCPA motion , Stickl and argues th at Schl egel
did not meet her pr ima fac ie b u rden , while S chlegel re sponds that Stickland “ seeks to

us e the TCPA to escape pote ntial liability for pu blishing l i es that [she] c ommitted a crime, wh ich she did not d o. ” In its appeal, Choice

- C4 argues th at S ch le g el a nd
Freed om

- C3 ’ s TCPA mot ion was untimel y an d that its claims f all und er at least on e TCPA exemptio n. We wil l ad dress Choice

- C4 ’ s timeliness complaint fir st. A. Timeliness of S c h legel and Freedom

- C3 ’ s TCPA motion 1. Expedited di smis sal
The TCPA c ontemplate s an expedited d ismissa l proced ure fo r claims brought
to i ntimidate or s ilence a defe n dant ’ s e xe rcise of the rights to petition, speak freely,
associ a te fr eely, and otherwise participate in go vernment to the maximum lawful

exten t wi th o ut im pairin g a nother ’ s righ t to fi le a mer itorio us lawsuit for demons trable

17 In her TCPA re sponse , Schlegel ar gued that the st at ement , “ Jack ie s tole money [from Choice

- C4 ] , ” was false “ because [ Choice

- C4 ] lost no mone y du e to any action b y Schle gel ” and b ecause she “ had the auth ori ty to transfer money from [ Choice

- C4 ] as its exec ut ive director and boar d m ember. ”21 inj ury . See Tex. Civ. Prac & Rem. Code Ann. § § 27.002

– .003

. It re q uir es “ early
di smi s sal of qualifyi ng leg al acti ons when the p l aintiff lack s evi dence of a ny essen ti al
el eme nt of its claim. ” USA Lendin g Gr p
. , Inc. v. W i nstea d PC , 669 S.W.3d 1 95 , 198 (Tex. 2023) ; see Avid Square Constr., L LC v. V alcon Consulting, L LC , No . 02

- 22

- 002 97

- CV,
2023 WL 3 113950, at *2 (Tex. A pp.

— Fort Worth Ap r . 27, 20 23 , no pet. ) (me m. op.) ( stating t hat the TCPA provides “an ex pedi ted proc edure for t he earl y dismissal o f
g roundless legal actio ns that impinge on First Amendment rights ” )

. 18 The TCP A is
i nte nded as a “ bulwark against retaliatory laws uits mea nt to intimi date or silence
ci tizens on mat te rs of public concern. ” Dall

. Mo rnin g N ews, Inc. v . H all , 579 S.W.3d
37 0, 3 76 (Tex. 2019)

.

18 D uring this case ’ s oral argument s , questions arose about the dif ferent eviden tiary burdens for TCPA and su mmary

- jud gm e nt motions , but we note that both pro cedures ’ g oal i s the same : either may be used “ to eliminate p at ently unmeritorious claims. ” Casso v. Brand , 776 S.W.2 d 551, 556 (Tex. 1989 ) ( quo t ing City of Houston v. Clear Creek Basi n A uth. , 589 S

. W.2d 671, 6 78 n.5 (Te x. 19 79), an d disc ussing what a no n

- m ed ia defendant must show to obtain a traditio nal summary judg ment in a public

- figure defamation action ). As noted in Casso , if an affiant ’ s or a depo nent ’ s c red ibil ity is likely to be a dispositive fac tor , then su mmary judgment is inap prop ri ate. Id. at 558

. T he same must hold true for the TCPA, which has an even lower
e videntiary threshold

. See I n re Lipsky , 4 60 S.W.3d 579 , 5 90 (Tex. 2015) (orig

. proceeding) ( exp lain ing tha t a prima facie case refers t o evidence su fficie nt as a m atter o f law to establish a given fact if it is not rebutted or contradicted) ; s ee also Van Der Linden v. Khan , 5 35 S.W.3d 179, 195 (Tex. App.

— F ort Worth 2017, pet. denied) ( “ Bu t just as conje cture, guess, or speculation will no t survive a p roxima te cause suffici ency c hallenge in the summa ry judgment context, conjecture, guess, or spe culation cannot survive ‘ clear an d specific ’ scrutiny under chap ter 27. ” ). I f t he r ecord ref lects no need for a credibi lity determination, then an i s sue may be d ecided as a mat ter of law. S ee Casso , 77 6 S .W.2d at 55 8

.22 Am ong it s balancing meas ur es, the TCPA imp oses a 60

- da y deadl i n e t o seek
dismissal of actions within its pu rv iew. See Tex. C iv. Prac. & Rem. Code Ann. § 27 .003(b) ; see a lso Montelo ngo v. Abrea , 622 S.W .3d 290 , 293

– 9 4 (Te x. 2021) (stating
th at t he 60

- day period may be re newed i f an amended or s upp lemental petition ad ds

n ew par ties, alleges new essential facts to s upport prev ious ly a s ser ted claim s , or asse rts new legal clai m s or theories invo l ving dif fere nt ele me n ts th an the claim s or theories previousl y asserted, but only as t o t h ose new par ties, f act s , or claims )

. A trial court
does not err by denyin g an untimel y filed T CPA mot i on . Patriot Contr acting, LL C v.
M id

- Main Prop s . , LP , 650 S.W.3d 819, 8 24 (Tex . A pp.

— H ouston [14th Dist.] 2022,
pet. denied )

. 2. S ervice or appearance as the 60

- day trigger The TCPA requires a dismissal mo tion to be filed “ not later than the 60 th day
after the d ate of servi ce of the legal action

. ” Tex . Civ. Prac. & Rem. Code An n. § 27 .003( b) (em phasis added). The p urpos e of cita tion is to give the trial cou rt jurisd iction over the par ties and to provide notice to the defendant that he has been sued, by whom , a nd for what , so th at due pr ocess will be se rv ed and so tha t he can app ear and defe nd the action. P roton PRC, Ltd. v. ET & AS Inv s . , Inc. , No. 0 2

- 2 1

- 0025 8

- CV, 2022 WL 488939, at *6 (Tex. App.

— Fort Worth Feb. 17, 2022, no pet.) (me m. op . ). B ut b ecau se an appearance can wai ve any de fe cts in or lack of ser vice , i d. ;

see Tex. R. Civ. P. 120 , the 6 0

- day filing pe riod begin s at the earli er of service or the
defendant ’ s appearance , Skidmore v. Gremillion & Co. Fine Art, Inc. , No. 01

- 18

- 00829

-23 CV, 2019 WL 111 94 01, a t *4 (Tex. App.

— Houston [1st D ist.] Mar. 12, 2019, pet.
di sm’d) (mem. o p.)

. To hol d other wise would allow a defend ant who has ap peared
but who has not been served or answered “ to wait until he has answered to file his
motion to di smiss, ” whic h w ould r un coun ter to the TCP A ’ s early

- dismissal pur pose . Id. at *5.
3. “ A ppearance ” req uir e men t s C ase law instructs that under c ertain circumstances, a defendant can appear in a

case without filing an answer . 19 See Schoendienst v. Haug , 399 S.W.3d 31 3, 316 (Tex. App.

— Austin 2013, no pe t.) ( statin g that in the abs ence of a wr itten a nswer, w heth er

a def end ant has “ appeare d ” de pends on the na ture a nd qual ity of its activities in the case). This fact

- specific analy sis co nsiders the nature a nd qu ality of any written
documents the defe ndant h a s filed in the case, any pa rt icipa t i on in he arings, a n d an y

o ther person al activity by t he defe ndant. Id. at 317.
A party enters a general appearance when it (1) invok es the judgment of the court on any questi on other tha n the court ’ s jur isdi ction; (2) re cog nizes by its acts that

19 A defendant ’ s appearance can also be evid enced through a trial court ’ s docket entry , see Tex. R. Civ. P. 120, but we have learned that Tarrant County , paperless since 2019, leaves it to individual j udges whether t o submi t dock et sheets as pa rt of the clerk ’ s record or to maintain them among the judge ’ s personal case notes

. See Tex. Gov ’ t Code Ann. § 51.80 7(a) (stating that a county ’ s courts may adopt l ocal rul es fo r transmitti ng and receivin g docum ents o r report s st ored or created in digital ele ctronic or facsimile form and for recogniz ing those documents as the original record for file or for evidentiary purposes). Per the Tarrant C o unty clerk, t his ca se has no doc ket sheet th at can be inclu ded in the re cord , so Rul e 120 is immaterial here

.24 an action i s prope rly pen din g ; or (3 ) seek s affi r mative action from th e cou rt. In re Guar dianship of Fairley , 650 S.W.3d 372, 386 ( Tex. 2022) (citing Exito Elecs. Co. v. Trej o , 142 S .W .3d 302, 304 (Tex . 2004) ); Da wson
- Austin v. Au sti n , 968 S.W.2d 319, 322 (T e x. 199 8) ; Canno n v. Ca nn on , No . 0 2

- 21

- 0 0404

- C V , 2023 WL 1859 881, a t *5 ( Tex. Ap p.

— For t Worth Feb. 9, 2023, no pet.) (mem. op.) (quoting Exito , 142 S .W.3d at 304 ). The
ultimate test is whether a party requests a ffirmative relief

— that is , an adjudication on

so m e quest ion

— that is i nc o nsis ten t with asser ting that the t rial court l acks ju risdic tion

. Proton PRC, Ltd. , 2022 W L 488939, at *6 ; see In re D.M.B. , 467 S.W.3d 100, 10 3 (Tex. App.

— San Antonio 2015, pet. denied ) ( “ [A] party ’ s r eq uest fo r affirmat ive ac tio n consti tut es a general app eara nce becau se suc h a request rec ognizes

a co urt ’ s j urisdi ction over the parties, whereas the me re presenc e by a party or his attorney does not constitut e a general appearance . ” ).
An affirmat ive acti o n could in clude ob jecting to s ubstantive is sues , D. M. B

. , 4 67 S.W.3d at 10 4 , examining wi tnesses , Seals v. U pper Trinity Reg ’ l Water Dist

. , 14 5 S.W.3d 291, 29 7 (Tex. App.

— Fort Worth 200 4, pet . d ism ’ d ) , 20 moving for summary judgment , Proton PRC , Ltd. , 2022 WL 488939, at *7 , or f iling a motion for

20 In Seals , we held that the appellee m ade a gene ral a ppearance when he p a rticipated in a hearing, stated that he had no objection to the appel la n t ’ s unsworn testimon y, r e s erved the right to p lace t he ap p ellant under oa th, and as ked the tr ia l court to deter mi ne the scope of the pleadings

— a ctions tha t “ ro se above the le vel o f merely acting as a silen t figurehea d in the cou rtroom ” and “ implie dly recog nized the trial c our t ’ s jurisd i c tion over the parti e s and the pe n dency of t he pr oce eding

. ” 145 S.W.3d at 298

– 99.25 ne w tri al, Gry nberg v. M

- I L.L.C

. , 398 S.W.3d 8 64, 879 (T ex. App.

— Corpus Christ i

– Edinburg 2012, pet. deni ed)

. But a party ’ s or th at party ’ s attorney ’ s mere presence in

court does n ot con stitute an ap peara nce. Fa irley , 65 0 S.W.3d at 386 ( cit i n g S eals , 14 5 S.W.3 d a t 29 7 ). Nor is m e re ly ap p ear ing a s a wit ness . Werner v. Colwell , 909 S.W.2d 866, 870 (Tex. 1995) (op. on reh ’ g)

. A nd n e ither is enter ing a Ru le 11 agreement that just exte nds a defendant ’ s time to file an initi al r espon sive pl eading

. Exit o , 142 S.W

. 3 d
at 305

– 06. 21 Agreei ng t o a trial court ’ s ord er may sometime s con stitute a general
appea rance. S ee S choen dienst , 399 S.W.3d at 318

– 19 , 322 . In Schoendi enst , the court held
tha t t he act o f co nsenting to and signing an a greed tem porary injunc tio n

— one th at

res trai ne d the defenda nt ’ s pe rsonal freed om and ability to dea l with her property and
fin an ces witho ut any sort of reservation regard ing the trial court ’ s jurisd iction o r the
order ’ s sub stance

— cons tituted recognition t h at the underlyi ng action wa s prope rly
p ending

. I d

. T he cour t ac kno w ledg ed , tho ugh, t hat agreeing or acqui escing to some

21 In Exito , the defendant ’ s Rul e 11 agreement did not constitute a general appeara nce b e cause it was “ a typic al lett er agreem e nt between th e par ties that did no t ad dres s the trial co urt and in w hich [ t he plai ntiff ’ s at torne y ] , by s igning the let ter, conf irmed in wr i ting that he would gr ant [the defend ant ] an extension of time to file a respo nsi ve pleading. ” 142 S.W.3d a t 306. T he letter agreement al so did not rec ogni ze t ha t th e a cti on was pr operly pendi ng but merely a ck nowle dge d t hat the defendan t had to respond to the petitio n in some manner. Id. The cou rt noted that a lthough f iling a Rule 11 agreement wi th the tri al co ur t is required to enforce t he agree men t , it is no t , in an d of itself , a req uest f or enforce ment o r ot her a ff i rmative actio n by the trial court
. Id. ; see also Dawson

- Austin , 96 8 S.W.2 d at 323

– 24 (holding that continuance motio n th at did not req uest affirma ti ve relief was not a genera l appearance )

.26 form of temporary in junctive relief will not always c onstitute an appearan ce . Id. at 321 ; 22 see Carey v. State , No. 04

- 09

- 00809

- CV, 2010 WL 2838631, at *3 (Tex . App

. — S an Antonio July 21, 2010, p et. denie d) ( mem . op .) ( h o ld ing th at agreement t o extend TRO and temporary i njunction

— as anci llary matters

— did not constitute general
appearanc e ) ; see also CIBanco, S.A., Insti tucion de Banca Multip le v. Que zada , 656 S.W.3d
7 4 9, 75 9 ( Tex. A pp.

— El Pa so 2022, no pet. ) ( h old i ng tha t par ticipa tion in garnis hmen t action , “ well

- recogn ized a s being an a ncillary matter, ” did not co nstitute general appear ance )

. Because of this nuance, we consider what an “ anc illary proce eding ” is : “ [a ]n action, eithe r at law or in equity , t hat gro ws out of a n d is a uxilia ry to an other suit and
is fi led to aid the primary suit, to enforce a prior ju dgment, or to impeach a prior
decree. ” A ncillar y suit , Black ’ s Law Dictiona ry (11 th ed. 2019) ; se e Tex . R. Ci v. P. 592

– 734 (characterizing Part VI of t he Ru les of Ci v

il Pro ce dure a s “ Rul es Relating to
Ancillary Proceedings ” and listin g

— among other things

— a ttachment, exe cution , g arnishment, injunction , receivership, and sequestration ) ; In re M.G.M. , 163 S.W.3d
1 91 , 201 (Tex. Ap p.

— Beaumont 200 5, no pet .) ( hol di ng that fa ther d id not waiv e h is

22 The Schlegel Defendants argu e that Schoe ndienst is d i stin guish abl e becau se th at defendant ag reed to the tempo rary in junction ’ s substan ce , not just its form. In Schoe ndie nst , the pro se ap pellant signed an ag reed temporary injunction , and a f ter the appellees se cured a d efaul t judgment against h er , she a rgued in a rest ric ted appeal that
s igning the agreed order had consti tuted an appearance such t hat s he should have bee n notified of the default

- ju dgment hea ring

. 399 S.W.3d at 315, 318

– 19. We t ake from Schoendiens t t hat (s ensibly) we mus t look to th e recor d to d e termine whe ther a defendant has made an app earance.27 sp ecial appearan ce whe n he agreed to e xt end the mother ’ s temporary e me rge ncy ex parte protective order

— a n agreed co l lateral order

— subje ct to hi s spe cial appearance) ; see also E xchequer Fin. Gr p
. , Inc. v. Stratum De v., Inc

. , 239 S.W.3 d 8 99 , 905 (Tex. App

. — Dal las 20 07, no pet.) ( stating that s ign ing order on the o ther defe ndan ts ’ plea in
abatement “ a pproved as to form only ” was no evidence to sho w that appellee had requested a ny a ffirmative rel ief fro m the trial court and th us w as no t a gen era l

a ppe arance). 23
But a ctively arguing about an underlying suit ’s merits at a TRO hearing may constitute a general appearance. Compare K aufman v. AmeriHe alth Lab., LL C , No. 0 5

- 20

- 00504

- CV, 2020 WL 63753 36, at *4

– 5 ( Tex. App

. — Dallas Oct. 30 , 2 0 20, no pet.) ( m em. op .) , 24 with Perk ola v. Koe lling & Assoc s., Inc. , 601 S.W. 2d 110, 11 1

– 12 (Tex.

23 The Sch le g el Defendants cl ari fy in their reply br ief that the y “ are not arguing t hat a part y can ne ver ma ke a general appearance at a n ancillary proce edi ng, only that [they] did not do so h ere. ”

24 In Kaufman , Ame ri Healt h s ued Kau fman for tortious in terference and breach of cont ract and so ught a TRO, a temporary injun ct ion, a nd expedited discovery. 2020 W L 6375 3 36, at *1

. At the TR O heari n g, Ka ufman ’ s co uns e l appear ed with o ut li m it ation an d a ct ively argued that K aufman was not a contract si gnatory before working out a R ule 11 agreement on discovery and a TRO extension un til the tem porary

- injunction hearing ’ s com pletion

. Id. AmeriHealth ’ s c o unsel re ad the Rule 1 1 agre ement i n to th e record and a sked the trial court to order t he parties to comp ly with it. Id. Ka ufman ’ s attorney added a dis covery request and then stated that

“ everyth i ng el se [Ameri Healt h ’ s attorney ] said is agr eed. ” Id. Kau fman later fi l ed a
s peci al appea r ance , w hich t he tr ial co urt denied

. I d. at * 2. On appeal, AmeriHealth argu ed that Kau fman had made a gene ral appearance, and our sister cour t agreed because Kaufm an ha d voluntarily appeared through
c ounsel at the TRO hearing, h ad su c ceeded in modi fying t he TRO b ase d o n his28 App.

— D allas 1980, writ dism ’ d ). 25 So can responding to an application for temporary and permanent injunctive re lief. Bach arach v. Ga rcia , 4 85 S.W.3d 600, 60 1

– 02 (T ex.

co uns el ’ s argum ents, a nd had argued that he was not a co ntract signatory , there b y challengi ng AmeriHealth ’ s breach

- of

- contract claim. Id

. at *4

– 5 . By stepp ing outside the role of o b serv er and participating i n the hearing, Ka uf man ’ s coun sel ’ s a c tions were inc o ns is ten t wi th asserti ng that the trial court lac ke d jurisdiction

. Id. at *4.

“ Instead, counsel not only actively part icipa te d in the hea ring but also sought and received affirmat ive relie f from the t rial co u rt. ” Id. The c ourt noted t hat w hi le
e ng a ging in dis covery is not enough by itself to w aive a spec ial appearan ce and that g enerally enter ing a Rule 11 agreement is li k ewise in suffici ent , Kaufman had agreed to terms read into the reco rd and to “ everythin g e lse ” Ameri Heal t h ’ s c ounsel said, w hich h a d in clud ed the trial court ’ s ordering comp liance wit h the Rule 1 1 agreement. Id. a t *5 ; see also Sedona Pac. Hous. P ’ ship v. Ventura , 408 S.W .3d 507, 513 (Tex. App.

— El Paso 2013, no p et.) (holding that appellants ma de a general ap peara nce w he n , in a Rul e 1 1 a gre em ent , the appellants not only agreed to continu e a temporary

- injunc tion hearing and to cancel a pending eviction proceeding but also s pecifically m ade the
a greement subject to fur t her court or ders , there by re cognizing th at the c ase was prop er ly pen d ing in t he trial court).

25 In Per ko la , after the plaintif fs sued for temporary and permanent injunctions and damages, Perkola filed a motion t o transfer venue (formerly known as a “ plea o f privilege, ” see 2 Tex. Prac . Guide Pers. I nj. 2 d § 7:8 44 (2 02 3) ) , f o llowed l ate r that day by his answer and special exceptio ns . 601 S.W.2d at 111. A lthough citation had not been served on him, he al so attended the temporary

- injunction hearing th at day

. Id

. At
a later hearing, the tr ial court deni e d the venue motion

. Id. O n appeal, Pe rkola complained that he had not w aive d his venue motion by appearing a t the temporary

injunction hearing , and the court a gre ed, stating that his appearance at th e hearin g on a n ancillary matter was not a n appearance in the main ca se beca use th e tempora ry

injuncti on hearing did not resolve any of the main case ’ s legal or factual issues , and he had done nothing else that “ in any ma nner invoked the power of the court

. ” Id

. at 111

– 1 2. Forty years later, t he K au

fman court di sting uished Perkola as c o n sist ent wit h the general prin ciple that simply attending an ancillary proceed ing is not a general appe arance under Ru le 1 20a

. 2020 WL 63 7 5336, at *4

. Per ko la wa s no t dispositive in Kaufma n because , un like t he Kaufma n defendant , th e Per kola de f endant had f i l ed his ven ue motion be fore t aking any other act ion, whi le the Ka ufman defendant did not file his special appearance unti l aft er the trial c ourt si gned t he T RO , and “ the opinion [w as] sil ent as to a n y actions that P e rk o la took , oth er t han appe ar in

g

, to con t est the ple a of privile ge . ” I d.29 App.

— Ho uston [14 th Dis t.] 2 016, no pet.) (holding TCPA motion un timely when
ap pellant answered initial application for inj unction despite lack of service ). 26
It all depends on the record , s ee S choe ndie nst , 399 S.W.3 d a t 3 2 1

– 22 , so we turn

to t he rec ord t o decide if t he Schlegel D e fe ndants appeared before a nswering

. 4. The record
On November 22, 2021, Choice

- C4 sent Schlegel a demand letter giving her a week to acc ept i t s offe r . Ei ther on or be fore No vem ber 26, Schlegel hi re d Davis as her atto rne y . On Nov embe r 29 , Choi ce
- C4 sued Schlege l and Freedom

- C3

. In its original petition, Choice

- C4 brought claims for trademark and logo infringement , trade

- secret and common

- law misapp rop r iation, and unlawful inte r fe rence with

26 In Bac harach , the plaintiff a pplied fo r temporary and permanent injunctive relief against the defendant for defamation an d other claims. 485 S.W.3d at 60 1. Eight d ays later , the de f en dant filed a respo nse to the pl aintif f

’ s appl i cat ion and asked the trial court to deny relief or , alternatively , to grant a continuance. Id. A lmost a year later, the defendant filed a combined an swer and TCPA motion

. Id. at 60 1

– 02. The trial court struc k the TCPA mot i on as untime ly , and our s i ster cou rt affirmed because even though the initial application for relief had no certificate of service or receipt of service , the defendant wa i ved her complaint ab out lack of service whe n she ans wered the ap plicat i on. Id. at 602 ( “ Bec ause B acharac h waiv e d servic e b y answering, she may not now rely on lack of service to justify the filing of her [TC PA] mot ion 23 months after the legal a c tion against her was first fi led. ” ) ; see Ski dmore , 20 19 WL 1119401, at *1, *5 (h o lding TCPA mot ion un timely when, althou g h plaint iff never served defendants, they appeared in court two da ys after suit was fi led for a he a ring on plaintiff ’ s TR O applica tion and then entered into an agreed T RO and two agreed
ex tensions )

. In Ski dmore , the defendants did not d isput e that t hey ha d made ge ner al appeara nces or that they filed their TCPA motion more than 60 days after they general ly appear ed; instead, they argu ed that a general appearance was not equi vale nt to service unless it took t he form of an ans wer. Id. at *2 . The court h eld th a t their 60

- day window to file a TCPA motion began to run when they made their general appearances. Id. at *5.30 pros pec tiv e bu sine ss rel ations

. Choice

- C4 also sought a TR O and temporary and permanent inju n ctive relief to prevent Schleg el and Freedom

- C3 f rom commun icati ng in Choice

- C4 ’ s na m e or , as to Schlegel, as it s executive director.
O n Novem b er 30, t h e d ay af ter Ch oice

- C4 sued , it s cou nse l, J. Christopher Diamond, e mailed Davis, stating, “ Please see th e attached pleadings tha t were filed late yesterda y ” and inf orming Davis that he pl an ned to schedule a T RO hea ring t hat day

. Dav is re pl ie d , “ For purpos es of t he Tarrant Co unt y local rules, we’ll want to be heard on any heari ng related to a [ TRO ] .” [Empha sis added

. ] Diamond repli e d, “Understood, and I will r eflect your p osi tion on that in the required certificate of compli ance. ” Later that d a y, D iamond se nt Davis a draft TRO ; D avis rep lied with a
redline orde r. Diamond accep t ed Davis ’ s changes, sent Dav is the final ve r sion, and
asked for ag re emen t on a $100 bond. Later that day, t he trial c our t h eld a n unre corded hearing

. T he tria l court ’ s

“ Agreed Temporary Restr aining Ord er ” st at es that it co nsidered “ t he Motion , inclu ding the attached Declaratio n of C hr isti n e Welborn , other attachments, argument of counsel for P laintiff and all D efe nda nts

. ” [ E mphasis added .] The order granted the TRO motion in part and deni ed it in part ba sed o n the se considerati ons and “ in light of the
P arties ’ agree ment
. ” S chlegel and Freedom

- C3 were order ed to stop communicating
in Choice

- C 4 ’ s nam e , to stop refer r ing to S chlege l as Choice

- C4 ’ s exe cutive dire cto r, and to stop comm un ic ating “ with current or p ro spective members, donors, and

v olunte ers in an at temp t to r ebrand , re name, or otherw ise cause confusion in31 reference to t he identity, l ead e rs h ip, and mission as [,] for [,] an d between [ Cho ice

- C4 ]
and [ Freedom

- C3 ] , ” as Choice

- C4 ’ s ori gi n al petit ion requested

. Da vis approved the
agr ee d order “ as to form. ” He a lso approved “ as to form ” an amended TRO the next
da y , w hic h reset the temporary

- inj unctio n hearing to D ecem ber 14. D avis then signe d

a Rule 1 1 agreement o n Dec ember 10 th at the parti es would m ediate as s oon as prac tical and pa ss o n the December 14 hearing

. The Rule 11 agreeme nt d id not call for any action b y the trial court

. Between D ecember 1 3 , 2021, and Janu ary 25, 202 2, the parties exchang ed
emails abou t selecting a media to r and di scovery matters. On D e cember 14, a fter s omeo ne at tempted to serve Langst on, a thir d party

em ailed b oth Diamond and Davis to com p lain th at Langston did n ot reside at her
address and to sto p harassing her. Davis forwarded the emai l to Diamond and asked,

“ Wha t is t his? Do you wan t me to s ee i f I c an accept se rvice and w e can reach an
ag ree ment on an answer date? Seems like that wou ld be easier. Let me know. ”
Diamond replie d, I’ve confirmed with my staff that we received cop ies of th e citations in this case but did not send to o ur pro ces s server. My intent was n ot to serve . Appa ren tly, so meone with the clerk’s offic e is try ing to serve. I w ill keep looki ng into it. Eit her wa y, let me know if any of your folks are served, and we can de al with it by agreement. [ Em phasi s add ed.] A t the TCPA hearing, Diamo nd exp l ain ed his “ intent was not to serv e ”

comme nt, stat ing that he thoug ht it was “ kind of a n aggressive, r ud e move

- - if

some body has already made an appearance, they already h ave a law yer, t hey ’ re alrea dy32 in the ca se, to ag g r ess ively , haras singly serv e their c lie nt. ” He stated that he se nt the
email t o assure them tha t he knew they had a ppeared and had a lawyer and that he

was trying not to be rude by embarrassing them t hrough service

. O n Jan uary 11 , 2022, D av is s ent the tri al court c ler k a va c ati on letter, asking
the clerk not to sch edule an y hearings in the case betwee n March 28 and April 5.
Choice

- C4 filed its first am ended petition on Janu ary 31, 2022 , adding the PAC and tweaking its c laim s a s we earlier descri bed

. O n Febr u ary 11, the Schleg el De fend ants , via Davis, informed Choice

- C4 , via Diamond, that Choice

- C4 had materially b rea ched the parties ’ Rule 11 agr eement ,

exc using the i r furth e r perfor mance . Davis c ompla ined that des pit e h is having

“ reache d out on mu l tiple occasions to a rrange for and attend mediation, ” he had not recei ved an a ckn owle dgment or ag reement. The Sch leg el Defendant s filed their

answe r and cou ntercl aims against Choice

- C4 tha t day. On April 12, t he y filed t h eir
T C PA motion

. 5. The part ies ’ a rguments If Schlegel and Freedom

- C3 appeared in the case at the TRO h earing, then
when Choice

- C4 filed its firs t amend ed petition on January 31 , Schleg el and Freedom

C3 ’ s dea dli ne to file a TCPA motion on the ne w cla ims wa s Apr i l 1

. But if none of the
Schl egel Def enda nts appea red until the ir February 11 answer , then thei r T CPA
moti on was not due until Apr il 12

— the da te they filed it

.33 Bot h pa rties discuss Tur ner v. Turner as t o D avis ’ s attending the TRO hearing

. No. 14

- 98

- 00510

- CV , 19 99 WL 33659 (Tex. App.

— H oust on [1 4th Dist. ] J an. 28, 1999, n o pet.) (no t designated f or publica tion)

. In Turn er , the appellee sued his fath er ’ s wi dow to terminate a trust and to e n join h er and th e trust

- management fi rm from disbursing or doing anything else with the trust ’ s asset s or div idends

. Id

. a t *1. H e also sought a TRO f or the same in j unct i ve relie f and an accounting

. Id. At the TRO
he arin g, t he widow was represented b y counse l. Id

. The trial court ente r ed a TR O and

set a temporary

- injuncti on hea rin g . Id. The widow later f i led a spec ial appeara nce , and
neither she no r her counsel a tten ded the t emporary

- injunction hearing

. Id. at *2. The
tri al court later hea rd her s pecial appearan ce and d enied it. Id. In the interlocutory appeal tha t foll owed, the appellee argued tha t the wi dow
ha d entered a gen eral appe arance by partici patin g in the TRO hearing before filing her special appe arance . Id. But the reco rd showed that al t hough the widow ’ s c ouns el ha d

a t tended the T RO hearing, he had no t filed a ny writte n pleadin gs or brief s and th at he
had explained h er positi on and had made observatio ns p ertinent to th e appellee ’ s allegations without calling any wit nesses. Id. at *3. H e a lso argued against t h e TRO , attri buting the asset

- disburse ment dispute t o the part i es ’ l ack of communic ation

. I d. at *3 & n.1. The c ourt concluded that the widow had not general ly app ear ed

. I d. at *3 (relyi ng on Perkola , 601 S .W.2 d a t 1 12, a nd Green v. Green , 424 S.W.2d 4 79,34 4 81 (Te x. App

. — Ty ler 1968, no writ) )

. 27 The co urt sta te d that th e appell ee had sought

t he TR O to preserve the tru st acc ount ’ s statu s qu o until a heari ng could be h e ld on
his temporar y
- inju nction request and that th e TRO he aring did not resolve any issues
of fact o r law relat ing to the trust ’ s dissolut ion but rather re l ated only to the ancil lary

m at ter of restraining the widow from making further disburs ements
. Id.
R elying on Turner , Schleg e l and Freedom

- C3 a r gue th at counsel ’ s mer e appearance at a TRO hearin g does not , by itself, cons titute a general a p pearance , and
the y contend that noth ing shows that they sought a ff irmative relief at the TRO
he aring

. Choi ce
- C4 labels Turn er inappl icab le bec au se the TRO hearing in this case

wa s not ancil lary b ut rather directly involve d iss ues of fac t and law alleged in Choice

C4 ’ s orig inal petition a nd contends t hat Davis acti vely p a rti cipated in t he TRO

27 In Green , t he plain tiff moved to modify child

- custody terms, and without noti ce to the defenda nt , the tr i al court suspe nded h er vis itation privi l eges and is sued a show

- cause order requiring her to appear and show cause wh y the plaintiff should not b e award ed temporary custod y pending the main suit ’ s final hearing. 424 S.W.2d at 4 80

. The defendant w as served , and she and he r coun se l ap peared at the show

- cau se hearing but filed no pleadings. Id. The trial court ’ s order stat ed that the parties had agreed to continue the temporar y
- custody hearing

. Id. at 480

– 81. The def enda nt then moved to tran sfer venue and , sub j ect to that mo tion, filed an answ er den ying th e pla intiff ’ s allegations. Id. at 481. The trial court grant ed the venue motion , and the p laintiff appealed, cl aiming tha t the defendant had waived her venue mot ion by her acts and c onduct because she had requ e sted and secur ed a c ontinu ance be fore f iling h er mo tion and had submitted to the trial court ’ s jurisdiction by agreeing to the temporary

- custody order. Id. The Tyler c ourt concluded that the defendant had no t waived her motion b ecause the sho w
- cause heari n g involved int erloc u tory o rders t hat ha d “ no r el ati on to an issue of law or fact[] going to the merits of the case ” and because it “ was forced u pon [ her] by the [plaintiff]. ” Id. at 482. The court stated that the defendant ’ s par ticipation “ in a preliminary h earing from w hich sh e could not escape w ould no t
. . . am oun t to a waiver of her [ venue motion ]. ” Id.35 hearing and con ti nued participating i n the c ase th e reafter

. Choice

- C4 also re fers u s to Vertex Ene rgy Operating, LLC v. Penthol LLC , No. 4:20

- CV

- 3901, 2021 WL 4538484, at *2 (S.D. Tex. Jan. 29, 2021) , in arguing t hat S chl egel and Free dom

- C3 ’ s active ly participa ti ng i n a TRO hearing an d co nvincing the tr ial court to modify the TRO w ere

ac ti ons that reco gnized they were subject to the trial court ’ s authority and that the

case was properly pending before the tria l cou rt. 28
6. Analysis
The record re flects that Schl e gel and Freedom

- C3 kne w on N o vember 22 , when they receive d Choice

- C4 ’ s de mand l etter , t hat t he y were going to be sued , a nd they preemptively hi red defe nse counsel

. Diamond, Choice

- C 4 ’ s c ounsel , sent the origin al petition to Davis, t heir counsel , on November 30 , and whe n D iamond
informed Davis about t he TR O hearin g t hat d ay , Davis replied that Schlegel and
Freedom

- C3 wo uld want to b e heard , which is some indication that t hey would not only a ttend but also pa rtic ipa te in the T RO hear ing. See S choe ndi enst , 399 S.W.3d at 31 6

– 1 7 (stating that whet he r a de fendan t has “ ap peared ” depends on , among other things, its pa rticipation in h earin gs). Davis also e dited Diamo nd ’ s dr aft TRO that day

.

28 In Vertex Energy , the federal district cour t not ed, “ Neithe r the Texas Supreme Court nor the Fifth Circuit hav e endorsed De fendant ’ s claim that a party can ne ver mak e a ge neral ap pearan ce at a n anci l lar y p roceeding and multiple Texas Courts of Appeals have explicitly rejected it

. ” 202 1 WL 45384 84, at *2 (citing Sc hoendienst and Ka ufman ). Although we are not bound by federal au thority, we may rely o n it a s per su asive

. Hern an dez v. Combine d In s. Co. of Am. , N o. 02

- 20

- 00225

- CV, 2021 WL 520456, a t *31 n.11 (Tex. App.

— Fort Worth F eb. 11, 20 21, pet. denied) (me m. op.)

.36 Th e TRO h earing i tself was not recorded, but t he ag r ee d or der , sign e d by
Davis as “ ag reed as to form , ” ma kes cl ear that the tr ial court considered , among other things, Davis ’ s arguments an d “ the P arties ’ agreement ” before gra nt i ng the order in
part and denyi ng it in part

. In addition t o a TRO, Choi ce
- C 4 ’ s original petition s ought temporary and
perm anent inju n ctive reli ef to p revent Schlegel and Freedom

- C3 f rom issuing

co mmunicatio ns in Cho ice

- C4 ’s name or in Schlegel ’s name a s “ executive di rector fo r [ Choice

- C4 ] , ” parti cul arly as it r el at ed t o i ts in fringem ent and misa ppropriation claims

. T he T RO addressed th ese issues by ordering S chlege l and Freedom

- C3 to s top

co mmunicating in Choice

- C4 ’ s name , to stop refer r in g to Schlegel as Choice

- C4 ’ s executive director, and to st op comm un i c ati ng “ wit h current or prosp ective mem bers,
d onors , and volunte ers in a n at temp t t o rebrand, r e name, o r otherwise cause
confusion in reference t o the identity, lead er ship, and mission as [,] for [,] and between [ Choice

- C4 ] and [ Freedom

- C 3 ]

. ”
The TRO dire ctly addres ses activit ies listed in Ch oice

- C4 ’ s or igi nal petiti on ,

an d by t heir actio ns b efore and d urin g the TRO hearing , Schlegel and Freedom

C3 re cognized that Choice

- C4 ’ s actio n was p roperly pending. 29 See F a irley , 6 50 S.W.3d
at 386 ; se e als o Scho endie nst , 399 S.W .3d at 3 18

– 19, 322 (n oting that the agreed

29 Altho ugh Schlegel and Freedom

- C3 maint ained at oral argument tha t the TR O order was void , it is the ir acti vities in t he case

— n ot the TR O or d er ’ s v a lidity or lack thereof

— that determine s whether they made an ap pearance sufficient to start the TCPA ’ s 60

- day deadline.37 tem pora ry injun ctio n restra ined the defe ndan t ’ s perso nal freedom withou t any sort of reservation regarding the trial court ’ s jurisd iction o r the o rder ’ s substan ce). This bespeaks more t ha n m ere presence as a “ sile nt figurehea d in t he court r oom . ” See Se als , 145 S.W.3d at 298

– 99 ; see also Kaufman , 2020 WL 637533 6, at * 2, *4

– 5

. Furth er, one of
Choice

- C4 ’ s primary goa ls in filing suit was to stop the acti vi ties addressed in the
TRO

. Cf. M

. G. M. , 1 63 S.W.3d at 201 ; A ncil lar

y suit , Black ’ s La w D ict iona r y (11 th ed

. 2019)

. We conclude that Schlegel and Freedom

- C3 made an appe aranc e at the
November 30 TRO hearing , making their TCPA motion due on April 1. Bec ause they
did not f ile the motion unti l A p ril 12, it was untimely as to them , and the tri a l cou rt did not err by denyi ng it

. We over rule this portion of t he Sc hleg el Def endant s ’ first
issue.
But because Choice

- C4 does not argue that the mot ion was untimely as to the
later

- added PAC, we will ad dre s s t he merits of the PAC ’ s p ortion of the T CPA

m o t ion

. B
. T he PAC ’ s a ppeal
T h e P AC argues that the TCPA applies to Choi ce
- C4 ’ s c lai ms that pertain to public statements about vaccine choice and th e PAC ’ s publi c advocacy and that no

statu tory exemptions a ppl y . Ch o ice

- C4 r esp ond s th at t he TCPA does n ot appl y to its

c laims because th ey relate to a private busines s dispute regarding its right to control
and acce ss its own co nf idential information and S chlegel ’ s obl ig a tion to return its38 p roperty. Cho ice

- C4 furt he r argues t h at th e L egislatur e has e xe mpted its cl a i ms from
the TCPA because its claims are based on recov ery fo r trade

- secret and corpor ate

opportunity misappropriatio n W e c onclude that Choice

- C4 ’ s exemption argu ment is

mer itorious.
1. T C PA b urde n - sh iftin g framework ; exe mptions
Ordin ar i ly , t he first ste p in t he TCP A burden

- shif ting ana lysis is for the mo va nt to sho w that the lawsu it is “ based on or is in resp onse to , ” here , t he movant ’ s exercise of the right of free sp ee ch o r as soc iation

. See T ex. C iv. Prac . & Rem. Code Ann. § 27. 003( a) ; see also id. § 2 7.005(b)

. If so, the nonmovant must then e s tablis h by clear

a nd s pec ific evidence a prima facie case f o r each essentia l el eme nt of the cla i m in
q uestion. Id. § 27.005 (b)

– (c)

. I f the no n movan t meets this burd e n , the movant may
obta in a d ismissal under the T CPA by esta blish ing an affirmative defense or other
g rounds on whi ch it is entitled to judgment as a matter o f law

. Id

. § 27

. 005(d).
But t he TCPA also contains ex e mp tion s to its applic a bility

. Id. § 27.0 10(a) ( listing actions to whic h t he TCPA does no t app ly)

. O ur sister court in Dallas has held
that when both step o ne and an exemption are at issue , judicial economy warr ant s

an alyzing the conte s ted exemption fi rst : if the action is of a type l isted in section 27.010, the step one analysi s is pointless

. Temp le v. Cortez Law Firm, PLLC , 657 S.W.3d 337, 346 (Tex. A p p.

— Dallas 202 2, no pet.) (“When a TCPA movant’s step

- one bur den and a nonmovant’s TCPA exemption are both disput ed, we conclude that a court may consid er a nonmovant’s exemption f irst, if it chooses to do so.

. . . Our39 appellate rules support this simply as a matter of judicial economy . ” )

. Finding this a
sensible a ppro ach that neither the TCPA nor controlling ca selaw forbids, we will skip straight t o t he parties ’ competing argument s about whether a TC PA exemption applies. S ee id. ; see also Tex. R. App. P

. 47.1 ( stating that the court “ must hand down a written opinio n th at is as brief as practicab le but that addre sses e very issue raised and necessary to fi nal disposition of the appea l ”)

. If an action fa lls under a TCPA ex emp tion, the TCPA may no t be used to
dis mis s it

. Tex . Civ. P rac. & Rem. Code Ann. § 27.0 10(a)

. The par ty asserting th e exemption m ust prove it by a n evi dentiary preponde rance . NexPoint Advi sors, L.P. v.
United Dev. Fu nding IV , 674 S.W.3d 437, 445 (Tex. App.

— Fort Worth 2023, pet. filed )

. W e ma y determine a TCPA exemption ’s applicability fr om the p leadin g s , v iew ed in
the light mo st favo rable to th e n on mova nt
. Baylor S cott & White v . Project Ro s e MSO , LLC , 633 S .W.3d 26 3 , 2 81 (Tex. App.

— Tyle r Aug. 30, 2021, pet. denied )

. We must
det ermine whethe r each individual cause of action falls within an exemption. Id

. at 28 2

. 2 . Choice

- C4 ’ s allegations and cau ses of action
Cho ice

- C4 alleged th at Schlege l and Hardy wer e both instru mental in forming
Ch oice

- C4 ba s ed on their politica l activi ties , from 2015 onwa rd, surrounding “ m edical freedom, bodily a uton om y , individ ual rig hts, and parenta l choice

. ” Choice

- C 4 , Fre edom

- C3 , and the PAC had related but distin ct missions for which Choice

- C4 , as a 501 (c) ( 4), to ok the lead on lobb y ing ; F reedom

- C3 , as a 501 (c) (3) , li mited its activiti es40 to authorized educati onal e f fort s ; and the PAC ra ised funds to spend on direct
p olitic al activity

. Choice

- C4 recounted tha t Schle gel had be en on the boards o f both
Choice

- C4 and Freedom

- C3 , had been Choice

- C4 ’ s executive dire ctor, and had been
the PAC ’ s tre asurer, imposi ng upo n he r f id uciary du ties as to all three entities. Ch oice

C4 also sta ted that Schlegel had exec uted a nondis cl osure agree ment restricting her

a ctivities apart from that entity th at might confli ct with its best i nterest s and that her
initia t ing a trans fer fr o m Choice

- C4 ’ s bank account to Freedom

- C3 ’ s ba nk acc ount

was una uthorized an d tantamount to w inding down Choi ce
- C4

. Choice

- C4 alleged th a t d e spite Schlege l ’ s ejection fro m its board and h er dismissal as its e xecutive director in November 2 021 , sh e ha d “ persisted in at tempting to speak on be h alf o f [ Choice

- C4 ], to us e [ its ] marks, and to restri ct and control [ its ] assets, includi ng [ its ] soc ial media web page s a nd mailing li st s ” and ha d per s isted in
efforts to operate Freedom

- C3 and the PAC “ des p ite a lack of con sent by [ Choice

C4 ] to the ope r ation of those en tities under those na mes. ” Choice

- C4 stated that by

“ usin g th e name s Texans for Vacci ne Freedom and Texan s for Vaccine Choice PA C, ” the Schlegel Defendants wer e “ causing confu sio n, vio lat ing [ Choice

- C4 ’ s ] trademarks,

ut iliz ing prote ct ed b usiness o pp ortunities [] a nd confidential informatio n, al l while trying to ‘ rebrand ’ th e mse lves under a n ew name ”

— despite th e agreement s Schlegel
had signed during her Choice

- C4 employment.
A s to th e PAC, Choice

- C4 s ought recovery fo r t he PAC ’ s trad emark and l ogo

use , alleging that it o wned th e wor d s “ Te xa ns for Vaccine Choi ce ” an d t he related41 logo and used the m to identify it s services ; that if the PAC were allowed to continue

to use them wit hout Ch oice

- C4 ’ s co nsent , it would cause conf usion a mong o rdi nary

con sum ers a s to the “ s ource, sponsors hip, af fi liation, or appr oval of the s e rvices ” ; and
that Choice

- C4 had suffered da mage s because of the PAC ’ s unauthorized use of these
items

. Cho ice

- C4 also sought re cov ery f or unlawful inte rfer e n ce with ex i stin g and
pro spectiv e business relations and c ontract s, alleging that i t would be “ i m po ssible to

m ove forward ” with its purpose when an entity “ no longer

. . . under [ its]
control

. . . c onti nue [ d] to send commu ni cat ions to the p ublic usin g [ Cho ice

- C4 ’ s ]
p latform, logo, name , and mission. ” And it s ought t he following decla rations: (1) t hat
C hoice

- C4 was entitled to the exclusive continued use o f the name “ Texans for
Vaccine Choice ” ; (2) th at C hoice

- C4 was en titled to the ex cl usi ve us e of t he Choice

C 4 logo; (3 ) that Choice

- C4 was e ntitled to withd raw its consent to the P AC ’ s use of
the simila r nam e “ Texans for Vaccine F reedom ” ; and (4) tha t Choice

- C4 ha d a right
and ob ligation t o con trol th e PAC ’ s a ctivities.
3
. Analysis
T h e TCPA d oes not ap ply to “ a legal actio n arising from an offic er

– director,

e mployee

– empl oyer , or independent

- co ntractor re l ationsh i p that . . . s eeks recovery for misappr opriation of trade secrets or c o rpo r ate op portunities

. ” Tex. Civ. Prac. &
Rem. Co d e Ann

. § 27

. 010(a)(5) ( A) (emphasis added)

. The TCPA do es not def ine

“ arising f ro m, ” but the ordinary meaning o f “ arise ” is “ to origina te; to stem from. ”42 B aylor Scott & White , 6 33 S.W.3d a t 2 85. T he party again st w hom the exem ption applies need not e ven be a par ty to the contrac t as long as the legal act ion arises from that relationship. Id. at 286. “ Unfair competit ion, ” for examp le, which includes

commo n

- la w mis appr o priation , is an umbrella for “ a numb er of typ es o f

o bjectionable trade prac tices, includ ing trade mark i nfringement , dilution of good will, misappropriation of business value, palming off , passin g o ff, an d theft of trad e

secrets. ” Id. at 286

– 8 8 (h olding that nonmovan t ’ s u nfair

- competition and Texas
Un i for m T rade Secre ts Act ( TUTSA ) cl aims for trade

- sec ret mi sappropriat ion fell
wi thin Subsection (a)(5) ’ s exemption).
In its TC PA re sponse, Choice

- C4 ar gued that e ach of its c laims was specifically

an d explicit ly exempted under the TCPA

. The PA C counters t hat an e xemption

cann ot apply to i t b ec ause it did not have a director

– officer, employer

– employee, or independent

- cont ractor r elatio nship with Choice

- C4

. The PAC furt her argu es that the exemption does n ot apply b e caus e C ho ice

- C4 dropped it s tra de

- secrets

misapp ropr iation claim

. To its TCPA re sponse, Choice

- C4 attached d ocuments sho wing it s hi st ory, its
trademark and logo devel opment , and public and donor confusion about the st atus and similarity of t he e nti ties ’ names. Choi ce
- C4 also attached the A pril
2021 nondis closure agreemen t executed by Sc hlegel as well as her Choice

C4 handboo k an d s igna ture.43 T he nond iscl o sure agreement pro vid ed tha t “ [a]ll wr itten a nd oral information

a nd materials disclosed o r pr ovided by t he Emp loy e r to the Employee unde r this Agreement const itute Confidential Informat ion reg ardl ess of whether such information was provi ded b e fore or aft e r the date of this Ag ree men t or how it was
pr ovided to the Employe e. ” It defined “ Confiden tia l Infor matio n ” as “ al l data and
in fo rmation relating to the business and management of the Emp loyer, ” including

cu sto mer information, i ntell e ctual p ro pe r ty, marketing and dev elo pme nt information,
bu siness operations, product info rmatio n , and s ervice inf orma t ion, among other
th ings , and it included an employee acknowledg ment tha t a ll r ights, title, and in terest in any confide nti al informatio n

— including any tra dema rks or tr ade names

— r emai ned
Choice

- C4 ’ s e xclusive property ev en if th e employe e “ may hav e created or contributed ” to their creation

. The nondisclosure agr eeme nt i ncluded Schlegel ’ s agreement that Choice

C4 wou ld be entitled to an in junc ti on restraining “ the Emplo yee, any of its personnel, and any agents of the Em ployee, fro m directly or in directly c om mitting or engaging in any act restricted by this Agreeme nt i n r elation to the Confidential Informa t ion. ”
Choice

- C4 included its memb er ship li sts as “ con fidential information ” under the
agreement , as well as “ all po sts, comments [,] and repl ies in all sec re t [ Choice

- C4 ]

- affili ated Facebook groups a s we l l as pr ivate messages and texts. ”
The nond iscl o s ure agreeme nt also addres sed avoidi ng conflict of oppo rtunities, stating,44 It is underst ood and ag reed that any business op portunity r ela ting to or similar t o the Employer ’ s curre nt or anticipated bu sine ss opportunities coming to the at t ention of th e Employ ee dur ing t he E mp l oye e ’ s e mployment is an opportunity belonging to the Empl oy er. . . . Without th e written consent of the Employer, t he Employee further agr ees n ot to directly or in directly , e ngage or p art icipate in any b usiness activi t ies which th e Employ er, in its reas on able di sc retion, determines to be in conflict with the best interest s of the Emp loyer. The Choice

- C4 employee hand bo ok prohibited depa rting and for mer employees fro m usin g or d i sclosing Choice

- C4 ’ s nonp ublic information in any f uture emplo y me nt withou t adva nce written permissi on from Choice

- C4 ’ s se nior management. It
in cluded the following acknow ledgme nt, which Schleg el signed, st ating , “ I

. . . a gree that after my e mpl oyment with [ Choice

- C4 ] terminates, I will no t disc los e or us e any inside or confid entia l informat ion o r t rade secrets concerning, belo nging to, or developed by or for [ Choice

- C4 ]

. ” Here, Choi ce
- C4 ’ s indiv idual causes of ac tion again s t th e P AC are trade mark and logo infri nge ment, torti ous in terf erence, and the four declarations. 30 Th e requested d eclarations flow from Choice

- C4 ’ s right to use its name and logo, th e ability to w ithdraw cons en t to the PAC ’ s use of a si milar nam e , a nd the right to
control the PAC. See T ex. As s ’

n of Bus. v. Tex. Air Control Bd. , 852 S.W.2 d 4 40,

30 I n its cross

- appellee ’ s brief, Choice

- C4 sta t es that it added “ a sol itary claim
a gainst the PAC , ” but nothing in Ch oice

- C4 ’ s ame n ded pe tition specifically ind icates that it di d so . To the contrary, the amended petitio n makes clear that the contract

breach and fiduciar y
- duty

- breach claims are brought against S chlegel individually but th at t he claims for tr adem ark and logo i nfr ing ement and unlawful in terference with busin ess relations and contracts are brought against “ Defendants, ” which includes the P AC.45 444 (Tex. 1993) (construing Uniform De claratory Judgments Act as “ merely a procedura l device for d eciding case s alrea dy within a c ourt ’ s j urisdic ti on ” )

. Choice

- C4 ’ s a m ended p etition and the evidence attach ed to its TC PA re sponse established that its legal a ction arose from the actions of Schlegel , acting as an offic er, acting indivi dua lly , and acting through Freedom

- C3 and the PAC

. Choice

- C4 ’ s laws uit

see ks recovery fo r misappropr iat ion o f its trade secret s , 31 as listed in the agreement and em ployee handbook , and for mis appropriation of co rpo rate opportunities in the
form of inter feren ce with its donor s , also in viola tion of t he agreement. Whi le spee ch

a nd association ar e implicate d in the uses to which the PAC ( t hrough Schl egel) has
put Choice

- C4 ’ s trademark , logo, and con fide nti al information, the se claims arose
f

rom Schlegel ’ s activities in violation of her inter nal agree ments with Choice

- C4

. Accor ding l y, we conclude t hat th e claims fall withi n th e TCPA ’ s Sectio n 27.010(a) (5) exemption, see Baylor Scott & White , 633 S.W.3d at 285

– 8 8 , and th at the trial court did

31 The PAC argues that Choice

- C4 failed to plead a tra de

- s ecret

misappro priati o n claim , which requi r es sh o wing t h at a t rade secret existed, t hat i t was acqu ir ed through t he breach of a conf idential relation ship or discovered by improper means, that it was used without authorization, and that the owner suffere d da mages as a res ult. S e e Snowh ite Textile & Furni s

hings, Inc . v . Innvision Hosp., Inc

. , No . 05

- 18

- 01 44 7

- CV, 2020 W L 7332677, at *4 (Tex. App.

— Dallas D ec. 14, 2020, no pet.) (mem. op. ) (listing elements of trade

- se cret misappropriation under TUTSA ) ; Rusty ’ s W eig h Scal es & Serv., Inc. v. N. Tex. Scal es, Inc

. , 314 S.W .3 d 105, 109 (Te x. App.

— El Pas o 2010, no p et.) (listing elements of common law trade

- secre t mis appropriation claim)

. But TUTSA defines “ trade secret ” broadl y to inclu de “ all forms and types of infor mat ion , ” inclu ding “ l ist of actual or pot enti al custom e rs or suppliers, wh ether tangible or in tan gib le, ” Tex. Civ. Prac. & Rem. Code Ann. § 134A.002 (6), which

— for a nonprofi t

— could include donors , and Choice

- C4 ’ s factual allegations support these elements

.46 not err by denyi ng the PAC ’ s TCPA mot ion. We overrule the Schlegel De fenda nts ’

s e co nd is sue. 32
C . Stic k land ’ s a ppea l
Stick land an d S c hlegel agree that the TCPA ’ s first step is satisfied

. Stickland
argues that Sc hle gel failed to meet her second

- step burden to es ta blis h by clear an d specifi c evid ence a prima facie c a s e for each elem en t o f her d efamation clai m : that h e pub li she d to a t hird pa rty a false a nd defamatory statem en t of fact that referred to her
with actual malice and

— de pending on w hether she suf ficiently allege d defamation per

se

— t hat she was damaged t here by. See Da ll

. Morni ng N e ws, I nc

. v. Ta tu m , 554 S .W .3d
6 14, 62 3

– 24 (Tex . 20 18) ( reci ting thresh old defamation elemen t s an d noti ng that defamation p er se “ occ urs when a st a te ment is so obviously detriment al to one ’ s good

name that a j ury may pr esume general damages ” )

. 33
1. Prima faci e case Under the TCPA, a pri ma facie ca se “ is th e meas u rement the Legis latur e

s elected to di stinguish ge nuine claims fr om suits brough t to h arass or silenc e, ” and it

32 Based on thi s disp osition, we do no t reach the Schle gel Defendants ’ third issue, which pertains to whether Choice

- C 4 met its prima facie burden under th e TCPA.

33 State ments that injure a person in her o ffice , prof ession, or occ upation are typically clas si f i ed as defamatory per se. T atum , 55 4 S .W.3d at 6 24. So is a ccusing someone of a c rime

. Id. at 638 (citing Lipsky , 4 60 S.W.3d at 59 6 )

. Schlegel contends that S ticklan d ’ s defa m atory statements fal sely a ccus ed h e r of commit ti ng a cri me (theft) and were act io n a ble per se .47 is “ not a h igh hurdle. ” US A Le nding G r p
. , 669 S.W.3d at 198

. To the contra ry, “ it is
th at m inimum quan tity of evidence necessary to ration ally infe r tha t an al legation is

true. ” Id. Evidence is “ clear and specific ” if it provides enough detail to show the
claim ’ s factual basis , an d such evidence “ nee d n ot be conclusive, uncontroverted, or
found credi ble

. ” 34 Id. at 200. Ins tead, under the TCPA , prima facie evid ence “ is t aken
at face value. ” Id. at 203. This is because the TC PA stage is n ot a battle of evidence ;

r ather , the TCPA ’ s purpose is to “ scre en [] ou t plaintiffs certain to fail

— those wh o

can n ot supp ort their claims wit h clear and specific evidence

. ” 35 Id. a t 205. At the TCPA stage, a claim survives if the evidence “ is legally sufficient to establi sh a claim
as factuall y true if it is not counter ed. ” Id

. at 204. But m ere notice pleading

— ge neral allegations that rec ite a c ause of acti on ’ s ele ments

— wil l not s uf fice. Lips ky , 4 60 S.W.3d at 59 0

– 91

.

34 But th e cou rt also cited Lipsk y f or the proposition that prima facie evidence is that “ sufficient as a matter of law to establish a given fac t if it is not rebutted or contrad icted

. ” USA L ending Grp., Inc. , 6 69 S.W.3 d at 203 n.33 (emphasis a dded) (quoting Lip sky , 46 0 S .W.3 d at 590 )

.
35 In U SA Lending Group , the court held that the plaintiff met its prima fa cie burden on legal malpractice despite the defendant ’ s challenge to its causat ion and damages evidence. 6 69 S.W.3 d at 20 0

– 0 1. T he plaintiff pr of fe red an aff ida vit from its CEO , which spon sored a variety of finan cial records, as well as three expert affidavits addressing the standard of c are, b reach, damages, and collect ability

. Id. at 201. The cour t noted th at while a general averment of loss , l ike any conclu sor y opinio n, would not be suff icient, the plaintiff ’ s evidence included both expert affidavits and evidence of dem onstrable out

- of

- pocket expenses , est ablishing tha t it “ s uffere d some specific, demonstrable injur y at tribu table to [the de f end ant ’ s ] conduct

. ” I d. at 20 2.48 In de ter min ing whe ther a legal action sho uld be di smis sed under the TCPA, the

tr ial court “ sha ll conside r th e p leadings, evid en ce a co urt could cons ider u nder Rule
1 66a , Texas Rules of Civil Procedure, an d s upporting and op posing affidavits stating
the fa cts on which the liability or defense is ba sed. ” See T ex. Civ. Prac . & Rem. Code
Ann. § 2 7

. 00 6 (a) ; K ad ow v. G ra u erholz , No. 02

- 20

- 000 44

- CV, 2021 WL 7 33302, at
*2 (Tex . App.

— Fort Worth Feb. 25, 2021, no p et. ) (m em. op.)

. We view the plead ings
in the light m ost favo rab le to the non mo va n t, favoring t he co n clu sio n t ha t th e cl aims

ar e no t predicated on pr o tect ed e x pre ssi on , and w e disreg a rd as irrelevant an y f act ual allegat ions that a re not a factua l predicate fo r the claims

. Newstream Ho tels & Re s orts, LLC v. Abdou , N o. 02

- 21

- 00343

- CV, 20 22 WL 1496537 , at * 2 ( Tex. A pp . — Fo rt Wo rth Ma y 12 , 2022, pet. den ie d) (mem. o p.)

. A TCPA non movant must provide enough d etail i n a defama tion cas e to

esta blish the facts of w hen , where, and what was said , the defa matory natur e of the

stat e ments, and how they damag ed her. Lipsky , 4 60 S.W.3d at 591. If neit her the ple adings nor the evi d enc e provides th e requis ite details, the party has failed to meet its bur d en of proof , and the T C PA movant is entitle d to d ismissa l. NexPoint Advisors , 674 S.W.3d at 445

. 2. F alsity
A publication ’ s me aning , and thus whet her it is false a nd defamatory, d epen ds

on a reas onable person ’s pe rception o f the pu blica tion ’s e nt irety and not merely on individu a l stateme nt s. Lipsky , 46 0 S.W.3d at 594. Fu r ther , i f a statement is not49 verifi able as false, it is not defamatory

. Tatum , 55 4 S.W.3d at 624. When a statemen t is

no t l iterally true , it may be substanti ally t ru e if it is no more damaging to the pl aintiff ’ s

r ep utation t han the truth would have bee n. Se e id. at 6 41 ; see Dall

. Morning News, Inc. , 579 S.W.3d at 377 ( stating th at to be “ not false, ” a st atement need not be perfectly

true as lo ng as i t is substantially true). To recover for d efam ation, a public offi cial must prove that def amator y statements made about her were false. Bentley v. Bunton , 9 4 S.W.3d 561, 586 (Tex. 200 2) ; see also Dall. Morning News, Inc. , 579 S .W .3d at
380 ( “ R xpr ess fails to esta blish a pri ma facie case that the News ’ s reporting was not sub sta nt ially true. ” ). I n construing a st atement to determine whether it was defamatory, we view it as a whole in light of the surroundin g circumstances based on
h ow a person o f or din ary intelligen ce wou ld p e rc eive i t. Mignogna v. Funim ation Prod s

. , LL C , N o. 02

- 19

- 00394

- CV, 2022 WL 3486234, at *8 (Tex. App.

— Fort Worth Aug. 18, 2022, pet. denied) (mem. op. )

.

a. Schleg el ’ s amended p leading s In h er first am ended p etition against Stick land , S chlegel allege d that he h ad
accused her of crimes she did not commit afte r , des pi te his thr eats and b ullying, s he
had refused to “ play ba l l ” with his att empt to control the messages o f Choice

- C4 and
Freedom

- C3 and to use th e m to sup port his favored poli tic al candidates

. S pecifical ly,
she a lleged:

• “ Mr. Stickl and has publ ished st atem ents t o third

- parties that M s. Sc hlegel stole money from [ Choice

- C4 ]

— a factual a ccusation that Mr. Stickland k ne w to b e false. ”50 • “ It was the comm on p rac tice of [the ] PAC to move m oney to the other t wo orga nizations severa l times a ye ar , ” and “ on Novembe r 18, 2021, Ms. Schlege l attempted to transfer mone y from [ Ch oice

- C4 ] t o [ Freedom

- C3 ]. The atte mpted tra ns fer had specific business purpose s, a cco rded with a wr itten action plan, and sought the best intere sts o f the vaccine choi ce movem e nt, ” and S chl egel “ did n o t require advance approval ” of the Choice

- C4 boar d to transfer the fun ds

.

• Hardy and Welborn , t he other Choice

- C4 directors, lea rne d of the att em pted t ransfer and b locked it , a nd “ [b]ecause the init iate d transfer was immediat ely b l ocked, no mon ey move d out o f the [ Choice

- C4 ] bank account

. ”

• Sti ckland “ was working be hind the scenes to unde rmine . . . S chlegel, wrestle
c on tr ol of [ Choice

- C4 ] from her, an d min imize [her] pla tform

. . . Stickla nd and h is suppor te rs have been de fam ing [her ], kno wingly s preadi ng lies to attack [her ] r eputation and cover their back room conduct. ”

• Hardy and W el born later a dmi tted that no m on e y was m oved fr om Cho ice

C4 through Schlegel ’ s attempted tran sfer, a n d they exp licitly concede d that t he attempted t ransfe r was irrelevant to her rem oval. “ It was irrel evant because Ms. Schlegel ’ s purported r emoval wa s about politics

— anger a bout Ms

. Schlegel ’ s d esire to rema in neu tral among elected pol iticians and a nger a bout [her] refu sal to beco m e a champion for, and le nd h er organization ’ s re sources to, the [Don] Huff ines gu bernatorial campaig n. ”

• Sti cklan d “ has repeatedly told i ndiv idu al s th at Ms. Schlege l ‘ sto le mone y ’ fr o m [ Choic e
- C4 ] . One of th e individu al s was . . . Beck meyer, who m Mr. Stickl and told that Ms. Sch leg el s tole mone y on Nov emb er 22, 2021.

. . . He made the statement in a matter

- of

- fact tone. He did n ot indicate that he wa s e x pressin g an opinion o r ma king a joke. He did n ot retract his s tatement. ”

• “ On information and bel ief, Mr. St ickland has made sim ilar def amato ry co mments to numerous other i ndividuals, including curr ent , and potential, don o rs to [ Choice

C4 ] and [ Fr eedom

- C3 ] as well a s Tex a n gra ss roots or ganizers and supp orters. For example, there w as a mee ting of a dozen or so Te xa s grassroots leaders in D e cembe r 2021. During that meeting, the attendees w ere asked whether any of t hem had heard that Ms. Sch leg el h ad stolen mo ney. All t h e at t endee s confirme d that [they] had heard those accusations, ” a nd many had heard the accusation s
“ from Stickland or his al l ies. ”51 • “ Stickland als o told

. . . McCarty that Ms. Schlege l stole money from [ Choice

- C4 ], ” and McCar ty repeat ed t hat li e in a Faceb ook post linked to Stickla nd

. 36

• “ Due to his per sonal relation ships with other board direct ors for [ Choice

- C4 ], Mr. S t ickland kn ew that no mo ney was transferred ou t of [ Choice

- C4 ] and that Ms. Schleg el n eve r s tole any money f rom th e orga n ization. His con tacts at [ Choice

C4 ]

— [ Hardy and Welborn ]

— knew that no money had been moved because t hey immediatel y st op ped the transfer. Upon inf ormation a nd bel ief, when [Hardy and Welborn] spoke with Mr. Stickland on o r a fter the evening of Novem ber 18, 202 1 [,] but before Novem ber 22, 2021, they tol d him what they knew about the attempted transfer hav i ng already be en s to pped. ”

• “ [U ]p on i nformatio n and belief, Mr . Sti ckland has admitted to at least on e perso n th at he knows Ms. Schleg el did no t st eal any money from [ Choice

- C4 ] and that Ms. Schlegel had the legal authority to initiate the tran sfer regar dless ” as a Choice

C4 boa rd director and as Choic e
- C4 ’s e xec utive d ir ector.

• “ Mr. Stick land made the fa lse statements to M s. Bec kmeyer and others about Ms. Schlegel with the pu rpose and intent of damag ing Ms. Schleg el ’ s reputa tion. He made t he false and disparagin g c omment s des pite kno w ing t hey wer e false o r despite entert ai nin g serious dou b ts about the tru th of the informati on . ”

• “ Upon information and belief, Mr. Stickland published subst antially similar ‘ Jackie stol e money ’ defama tory falsehoods to thir d p arties in November 202 1, Dec embe r 2021, a n d/or Jan ua ry 20 22. ”

• Schlegel “ h as s uff ere d harm to her re putati on, men tal anguish and/or economic damages. ” b. Schlegel ’ s TCPA response
In her TCPA respon se, Schlegel re lied pr imarily on her a men ded pe tition ’ s alle gations

. She a lso attache d he r unsworn declaration , 37 ten page s o f excerpt s fro m

36 We earlier quote d McCarty ’ s undated Fa cebook post that Schlegel inse rted into her amended petition.

37 In her uns worn declar ation, S chlegel set ou t her h istor y with Choice

- C4 , Freedom

- C3 , and the PAC and asse rted that in 2021 , Hardy ’ s joining Hu ffines ’ s52 the B eck me yer dep osition , 38 and pages 34

– 37 and 66

– 69 of t he Beckmeyer

– Choice

C4 meeting transcript

. 39 Her response fo cused on ( 1) the Beckmeyer statement; (2)

t he Mc Carty Face book post ; and (3) Sti ckla n d ’ s havin g allegedly t ol d ot her ,

un identified pe ople that s he st ole money.

gubernatoria l campai gn as a paid staffer had changed their relation ship because Hardy wanted Schlegel to “ partner with her on Huffines

- related efforts ” a nd for Schleg el , Cho ice

- C4 , and Freedom

- C3 “ to open ly cri ti cize the s ittin g Governor, who w as [Hardy ’ s] b os s ’ s most formida ble op ponent in the pri m a ry election. ”

38 In those exc er pts, Beckmeyer state d that she had kno wn Sch legel sinc e 2016, tha t they were f riends, that she conside re d Schle gel to be t rustworthy and

— from what she kn ew of Schlegel

— beyond reproac h. She di d not recal l portions of the demand letter that Starn es had read to her or whether Schlegel had t old her that Sat urday that she had actua lly not trans fe rred the fu nds

. She stated that the way she r eca lled Stickland ’ s s tatement during their phone c all was “ Ha ve you he ard [ Choice

C4 ] is having a problem, [ Schlegel ] stole money , ” that he to ld her that t he board told him tha t , an d that when sh e asked, he said he had no t c ontacted the bo a rd or Schlegel f

or proof

. Beck meyer s tated that she understood t he other board members belie ved that tran sferring the money equated to the f t bu t that sh e disagreed wi th them , alth ough everyone agreed that Schleg el “ did in i tiate a transfer. ” Be ckm eyer agreed that one of the disputes was whethe r Sch legel had th e authority to transfer the fund s. Stickland attached to his TCPA motion B e ckmeyer ’ s ent ire dep ositio n (86 pages) , inclu di ng deposition exhi b it s.

39 One page o f t he transcript contains a sentence by “ f emale s peaker ” that says,

“ But really, t he money tran sfer is really i rrelevant to [Schleg el ’ s ] remov al ” because S chlegel had ma de it c lear t hat Choice

- C4 ’ s bo ard wou ld have to fire her “ in order to get [ Choice

- C4 ] bac k on its original mission . . . and it ’ s just the t iming of her removal seem s t o be the is sue. ” But ma ny fem ale speakers were at that meeting, including Bec kmeyer.53 c. Analysis
Stic kland argues th at as t o the second and third a lleged ly defamatory

st atemen ts

— the McCarty Facebook post and his having told other, unidentified
peo ple tha t sh e s t ole mo ney

— S ch le gel fail ed to pro du ce evidence th at he w a s the

s tatement ’ s spe aker an d that in one of th ose two statements, she a lso failed to p lead
what wa s said. Stick land asserts that t he only a dequately pleaded statement wa s hi s

a l l eg ed statement t o Bec k me yer and that it wa s true or sub stantially true. We agree wi th Stickland that t he second and t hird statements ar e not support ed by suf ficient clear and s pecific evi dence because they do not provide enough detail s . Se e Li psk y , 460 S.W.3d at 59 1 ; se e also Nguyen v. Trinh , No. 14

- 21

- 00110

- C V,
2022 WL 805820, a t *6 (Te x. App.

— Housto n [14th Dist.] Mar. 17, 20 22, no pet .) (mem. op.) ( “ Because appell ee failed to provide the trial cour t or this court with the
content in which he ass erts he was defamed, neit her t h e tria l court, nor this court,

cou ld review the entire ty of the publicati ons to determi ne whether appellan t made
false stat ements of fact defa ming appellee. ” ) ; Rogers v. Soleil Chartered Bank , No. 02

- 19

- 00124

- CV, 2019 WL 4 686 303, at *7 (Tex . App.

— For t Wor t h Sept . 26, 2019, no pet.) (mem. o p.) ( noting tha t a p arty ’ s choosing to rely on its pl ea ding “ gambles that the

o ften

- times conclusory and ske tchy allegations of a notice pleadi ng will not satisfy the clear and specifi c bu rde n of establishing a prima faci e c ase ” )

. But w e are not required t o d eter mine that eac h statement St ick land made i s false and defamatory

. S e e M iller v . Watkins , No. 02

- 2 0

- 00165

- CV, 2021 WL 92 4843, at54 *9 ( Tex. App.

— Fort Worth Mar. 11, 2021, no pet.) ( mem. op .). Instead, we ne e d only
deter mi ne w hether any of Stickland ’ s al leged statements w er e false and d efamatory. See
i d. Sc hle gel ’ s a mend ed pe tition and the Beckmeyer deposition excerpts establish that
on No vember 22, 2021, Stick land tol d Beckmeyer that S ch leg el stole money ; thes e it ems est ablish when th e statement was made and what was said

. Accordi ngly , we

mus t next consi d er wheth er Schlegel establ ished through prima facie evidence that
this statement was false

. See id. ( citin g Lipsky , 460 S .W .3d at 591) ; see also Ben tl ey , 94 S.W.3d at 586

. To d o so, we must de te rmine whet her the statemen t wa s subs tantially true

. Web er v. Fernandez , No. 02

- 18

- 0 0275

- CV, 20 19 WL 139579 6, at
*1 (Tex. App.

— Fo rt Worth M ar. 28, 2019, no pet.) (mem. op.). A public at io n i s not subs tantia ll y true if, ta ken as a whol e, it is m ore d amaging to the plai ntiff ’ s reputatio n t han a truth ful publicatio n woul d have been. Id. at *8. T he publi cation ’ s meani ng is determined by construing it as a whole in light o f the surrounding ci r c um s tances based on how a pe rson of ordin ary i ntellige nc e wo uld perceive it. Id. 40

40 Furt her, t he supr eme court has instruc ted us th at if we determine that a state men t is capable of defama tory meaning and only def amatory meaning, then a jury plays no role in determining its meaning. T at

um , 554 S.W.3d at 632 ( discussing defamat ion by imp l icatio n)

. If , on th e other hand, we determine tha t a statement is capable of at lea st one defamatory me an ing and at least one non

- defamatory meaning, then it is for the jur y to determine whether the de f amatory sense wa s t h e one convey ed. Id. If we d etermi n e that the statemen t is not capable of any def ama tory meaning, then the statemen t i s not defamatory as a matter of law , and the claim fails. Id.55 In Weber , a TCPA cas e, we considered a Fac ebook po st made a bout the plaintiff, a f ormer city council memb er . Id. It state d, in pertinent part , “ [The pl aint iff ]
is a conv ic ted c ri min a l, he c ommit e [sic] rob bery whil e being a Kenne dale city council

m ember. ” I d. The plaintiff ’ s d e f amation cla im was based on the fact t ha t he had not
been cha rged with robbery and had not been con victed of any crime. Id. at *9

. In actuality , he h ad p lea ded guilty to the ft

— n ot rob bery

— i n e xchange for def erred adjudication community supervision , for wh ic h there was no judgment of conviction

. Id

. We conclude d that the statement that he was a “ convicte d ” criminal was no more damagi ng t han if he had mo re a ccu rat e ly been descr ibed as ha ving plea ded guilt y to

m isdemeanor theft in exchange for deferred adjudi ca tion. Id

. a t *11

– 12.
We likewise co n cl uded that a statement in an online video that the plai ntiff wa s

a “ known th ief ” who “ stole from so mebody ” wa s al s o s ubstantial ly true and n o more damagi ng than a true s tat ement would have been bec ause it w as undisput ed that he
had been charged wit h theft and ha d pleaded guil t y to the offense. Id. at *12. But see id. at *22 (Gabriel, J., dissenting ) ( “ In o ther wo r ds, [ac cording to the majority ,] clos e

enou gh is good en oug h t o refute falsity regar din g the imputation of crime in the
TCP A c o ntext. ” )

. But the robbery re ference in the Faceboo k post “ fal sely imputed to [the p laintiff] the additional act of committing or at te mpt ing t o commit vio lence or threatening violen ce ag ai n st a pe rson , ” an d the statem ents cont a ining thes e references
were not substantia l ly true because t he y were more damagin g than the true statem ents56 that he was charged with misdemea nor theft and plea ded gui lty t o it. Id

. at *13. 41 We
nonetheless rever sed t he denia l of the TC PA motion on the defamation clai m because the p laintiff failed to meet his b urden to show cl e ar and specific eviden ce of actual
mali ce. I d. at *18, *20.
Stickland did not disp ute th at h e m ade a statement to Be ckme yer . R ather, in h is

am ended T CPA m o ti on he st ate d that it wa s undisputed th at he had conveyed to
Beck mey er that Choice

- C4 ’s board ha d ac cused Schlegel of steal ing and that “whether Schlegel did essentially try, in la yma n ’s terms, to stea l the money , . . . [ is] being litig ated in an o ther c ase in this s pra wling litigation

. ” 42 Other evidence shows that the

41 In Lilith Fund for Reprod u ctive Equity v. Dickson , the su preme court rec ent l y con cluded that challenged TCPA s tateme nts about “ mu rder ” were protected opinio n s about abortion law made in purs uin g a change in that law

. 662 S.W.3d 355, 357

– 58 (Tex. 2023) . This is because whether an al leged defamatory state ment co nstitutes an opin ion rathe r than a verifiable fa lsity i s a qu esti on of law answered from the perspect ive of a reasonable person ’ s perce pti on of the communi catio n ’ s entirety , not from isolated statements

. Id. at 363. In Lilit h F und , the def amation de fendant ’ s tone and langu age were “ exhortatory, not fact ual , ” p rovidi ng c lu es to t he reader that his purpose was advocacy, not fact d i sseminati on . Id. at 367. A s Schlegel pointed out in her letter of supplemental a u thori t y rega rding th at case ’ s p ol itical back dr o p , a l legation s of “ murder ” are dis tinct on many levels from theft , and no para lle l debate exists about “ whether stealing mon ey cons t itute s a crime ” or about “ the propriety of transferring money between ” nonprofit org anizat ions.

42 T his is not a c a se like Va n Der Lind en , in w hich a lleged pr iva t e comments ma de betwee n the parties we re later published by the defendant to the plaintiff ’s business partners. 535 S.W.3d at 186, 198

– 2 02 . Only the parties in that case k new whether the plaint iff had actua l ly made the com ments , so th e plaintiff

— who was no t a pu blic figure a nd therefore ha d a neglige nce burden

— met his TCPA prima faci e r equi rement on both falsity and negligence when he denied in his affidavit that the conver sation had ever taken pl ace. Id. at 18 5, 201

– 02. N o one denies th at Stic kland made a statem ent to Beckme yer a bout S chle gel

.57 al legatio n ’ s gist was that Choice

- C4 ’ s board alleged that Schlegel had atte mpted to
transfer mone y from C hoic e
- C 4 to Freedom

- C3 , an entity she c ontrolled, w ithout the lega l a utho rity t o do so , 43 a state me nt that i s not more damaging (o r less true ) than the
actual statement that she had stolen money from the nonprofit org anization

. 44
Because the record reflects that th e statement i s substa ntially tru e , see Web er , 2019 WL 13957 96, at *8 , we sustain Stickland ’ s second issue and do not rea ch his remaining issues regarding TCPA evidenc e and whether he establish ed an affirmative
defense

. See Tex. R. App. P. 47.1.
I V. Conclusion
Havin g overruled the Schlegel Defendants ’ first an d second issues, we affir m the trial court ’s orde r denying their TCPA motion

. Having sustained Stickland ’ s second issue, we re verse the trial court ’ s or de r de nying his TCPA mot ion , re nder judgment granting hi s TCPA motio n, an d re mand th e case t o t he trial court to deter min e attorney ’ s fees , costs, an d potential sanction s . See Tex. Civ. Prac. & Rem.
Code Ann. § 27.009. We deny Choice

- C4 ’ s cross

- point request for s anctions unde r

43 In i t s cross

- appellee ’ s brief , Choice

- C4 refers to Schlegel ’ s “ in appropriate
a ttempt to stea l eighty percent of [ Choice

- C4 ’ s] o perating funds. ”

44 Or, as S tickland stated in his ope ning br i ef , “ Li ke a bank r obber who is stopp ed by th e polic e before he makes his getaw ay, the fact that [Sc h legel ’ s] attem pt to a ppropriate the money was thwa r ted does not render the statement at issue false. ” In his re ply brief , he r eiterat es , “ T aking money t hat doesn ’ t belong to yo u can fairly be characterized as ‘ st eal ing

. ’ ” See Tex. Penal Code Ann. § 31.03 (a), (b) (1) (definin g theft
as the appropr ia tion of property without the owner ’ s effective consent and wi th the intent to de p r ive t he o wner of the property )

.58 R

u le of Appellat e Procedure 45 because , as discussed a bove, the Sch legel D efendants ’ appeal contai n s at lea st one arguable iss ue . 45

/s/ Elizabeth Kerr E lizabeth Ker r Ju sti c e Deliver ed: November 22, 2023

45 Althou gh we ultimately concluded th at the Schlegel Defendants’ arguments on the appearance and exemption issues lacked merit, the extensive analysis required in reaching that conclusion suggests that those issues were not frivolous

.