## In the C o urt of Appeals Second Appellate District of Texas

at Fo rt Worth

___________________________ No. 02

- 20

- 00044

- CV

___________________________

On Appeal from the 89th District Court Wichita County, Texas Trial Court No. DC89

- CV2019

- 0 55 6

Before Suddert h , C.J.; Womack and Walker , JJ. Memorandum Opinion by J usti ce Womack 

### B ARBARA 

### J. K

ADOW 

### , Appellant

V



### . M ICHAEL 

### H. G RAUERHOLZ 

### , I NDIVIDUALLY AND AS 

### P RESIDENT OF



### W ESBRO O KS 

### , I NC



### . , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTION This is an accelerated interlocuto ry appeal under the Texas Citizens
Pa rticipation Act (

TCPA ). 1 See Tex. Ci

v. Prac. & Rem. Code A n n . § § 27.00 1

– .0 11 , 51.01 4(a)( 12)

. A ppellee Mich ael H. Grauerholz, individually and as president o f
Wesb rook s , Inc. , sued appellant Barb a ra J. Kadow for defamation

. Kadow moved to
dismiss that suit under the TCPA. The trial court conducted a hearing on t he mo tion
but allowed it to b e overruled by oper ation of law. See id. § § 27.005 (a) ( stating that
trial court must ru le within 30 days after hearing concludes ) , . 008 (a) (stating that if a
trial court does not rule within the time pr escr ibed by Sect

ion 27. 0 05 , t he motion is

“ conside red to have been denied by operation of law ” )

. We will reverse and remand

. II. B ACKGROUND Kadow sued G rauerholz for breach o f contr act and conversion in Denton County probate court in February 2019

. O n September 10 , 2 0 19 , Gr auerhol z filed a defamat ion law suit against K adow in Wichita County

. 2 Grauerholz alleges that
Kadow sent an email to Randy Camp , Grauerholz ’ s accountant, on August 8, 2018 ,

1 T he le gisl atu re amended the TCPA effective September 1 , 2019 ; those amendments apply to actions filed on or after that date. See Act of May 17, 2019, 8 6th Leg., R.S., ch. 378, H.B. 2730 § 11 ( effective Sept. 1, 2019)

. Because Grauerholz filed suit on September 10, 2019 , th is case is governed by the TCPA as amende d.

2 Grauerhol z later added a claim for unautho rized use of a credit card. That clai m is no t at is sue on app eal

.3

stating that Grauerholz was “ under criminal i nvestigat ion fo r fr a ud [ , ] abuse of the
el der ly , misa ppropriation of f unds, theft, and kidnapping

. ” Grauerholz alleges that he
discovered the email during a search of records in response to a discovery reques t i n Kadow ’ s Denton County l awsuit.
In t he ema il , w

hic h is a ppended to Grauer holz ’ s origin al petit ion, 3 Kadow asks Camp to give her certain documents relating to the sale of Wes brooks and to payments on a note. Kadow explains that the documents are “ cru cial ” to her lawsuit ( which sh e ha d not ye t f

ile d) to recover the balanc e of the note fro m G ra uerholz

. She also explains that she is “ unable to file the lawsuits due to lack of complete
informatio n . ” Later in the email, Kadow states that Gra uerholz “ is under crim inal
inv e sti gation f

or Fra ud, Ab use of the elderly , misappropriatio ns of funds, the ft,
k idnapping, etc. ” She urges Camp not to incriminate himself by protecting
Grauerholz or by “ losing ” any of the documents she requests.
Kadow was served wit h Grau er h olz ’ s su it on Septem ber 11, 201 9, as she awaited her depos ition in the Denton County lawsu it

. In her origin al answer to
Grauerholz ’ s suit , she asserted as affirmative defe nses that the suit was barred by
limitations and that h er sta te m ents wer e m ade in co ntemplation of a judi cial proceeding.

3 Grauer holz ’ s am ended petiti on ref ers to the email as “ Exhibit A ” but does not actua lly a ppe nd it as a n exhibit

.4

Kadow moved to dismiss Grauerholz ’ s suit unde r t he TCPA , asserting that the suit infringed on both her right to f ree speech and her right to petition

. Kadow a lso again asser te d that Gr au e rho lz ’ s s uit is barr ed by limi tations.
Rather tha n responding to the motio n to dismiss on its merits , Grauerhol z

mov ed to strike the motion based solely on the fact that Kadow denied having sent
the email. Gr auerhol z append ed to h is mot ion fo ur unauthenticated page s from
Kadow ’ s de position in th e Denton County lawsuit. In those excerpts, Kadow states
tha t she wro te th e email but did not send it.
The trial court held a he aring on Kad ow ’ s TCPA motion o n Decem ber 18 , 2019

. Grauerholz t estified that he heard Kadow testif y during her deposition that she
did not send the email

. Neither party offered any other evidenc e . G rauerholz ha nd ed
the court a copy of Kadow ’ s d epo sition , but that depositi on was no t offe red or
admitted into evide nce and is thus not in the record

. Kadow ’ s TCPA motion was overruled by operatio n of law on January 17, 2020.
See id. § § 27. 005 , .008 (a)

. Nevertheless , on January 21, 2020, Grauerholz objected to
the mo tion as un t

im ely

. III. D ISCUSSION
A. Overview of the TCPA A party moving to dismiss a legal act ion unde r t he TCPA bears the initial
b urden to demonstrate that the action “ is based on or is in response to ” the mov ant ’ s5

exercise of the right of free spe ech or th e right to p etition

. 4 Id. § 27.00 5( b )

. This burden may be satisfied by reference to the plaintiff ’ s petition which , “ as so ofte n has
bee n said, is the best and all

- sufficient ev idenc e of the nature of the a ction. ” Hersh v.
Tat um , 526 S.W.3d 462 , 4 67 (Te x. 2017) (internal q uotation marks omitted)

. “ When it is clear from the plaintiff’s pleadings that th e action is covered by the Act, the
d efendant need show no more. ” Id. ; accor d Ada ms v. Starside Custom Bu ilders, LLC , 547 S.W. 3d 890, 897 (Te x. 201 8)

. If the movant carries her burden, the court must dismi ss the action unless the

nonmovant “ e stablishe s by clear and spe cific evidence a prima facie case for eac h
essential element of the claim in qu estion

. ” Tex. Civ. Prac. & Rem. Code Ann. § 27.0 0 5( c)

. But e ven if the nonmovant establishe s a prima facie case, the court must still dism is s t he action if the movant est ablishe s an affirmative defense. See i d. § 27.00 5( d)

. In determin ing t he motion, t he trial cour t ma y consider the pleadings,
affid avi ts , and e vi dence per mitted in a su mmary

- judgm ent c ontext
. See i d. § 27. 00 6

. This c ourt review s a ruling on a TCPA motion to dismi ss de novo. Beving v. Beadles , 563 S.W.3d 399, 404 (Tex. App.

— Fort Worth 2 018 , pet. denied )

.

4 O ur discussion of the TCPA is limited to those provisions that apply to the facts before us. For example, the TCPA al so appl ies to a ctions ba sed on o r in respo nse to the exercise of the right of association , see T ex . C iv. Prac. & Rem. Code Ann . § 27.00 5(

b ) , b ut we need not a ddress that right because i t is not at issue here.6

B. Waiver of Kadow ’ s free s pe e ch ground
As a threshold matte r, we must address Grauerholz ’ s c ont enti on that Kadow
waived her motion to dismiss insofar as it is based on her right of free speech. Waiver
is “an intenti onal reli nqui shment of a known right or intentional conduct incons ist ent with claimi ng tha t right

. ” Jernigan v. Langley , 11 1 S.W.3d 153, 156 (Tex. 2003)

. It is largely a matter of intent, which is determined by examinin g the surrounding facts and
circums tance s. Id

. Grauerholz ’ s wa iver argu ment is based on this statem ent by Kadow ’ s att orney

a t t he TCPA hearing : “ W e ’ re not ar guing free speech. We ’ re arguing this is an infringement on my cl ient ’ s right to petition

. ” This statement must, however, be
consi d ered in context. See id

. Kadow ’ s motion to dismis s expr ess ly recite s that it i s based b oth on her right
of fr ee speech and her right to petition. Her post heari ng b rief in support of dismissal similarly recites that her motion is based on both r ights. A nd, a t the hearing on the
motion , Kadow co nfi rmed t hat sh e was alleg ing a n infringement o n her right of free speech even though her primary allegation concer ned her right to petition.
The bulk of Kadow ’ s oral argument at the hea ring concerned her right t o pet ition and whether G rauerho lz had filed his lawsu it to intimidate her from p urs uing her Denton County suit against him

. But Gra uerholz ’ s responsive argu ment

a ddressed only two iss ues
— the effect of Kadow ’ s den ying t hat she sent the email and
the statut e of limitati o ns. I t was in th is context tha t K adow ’ s attorney stated that he7

was not arguing free speech. Considering the totality of t he pleadings and the reco rd of the hearing, a fair int erpretation of this statement is that Kadow ’ s atto rney wa s fo c us ing h is argument to th e court at th e h earing on the right to petition, not that he was waiving any argumen t based on the right of free speech.
Graue rholz ’ s contention that Kadow waived application of th e TCPA based on infringement of her rig ht o f f ree s pe ech i s overr uled.
C. E xe rc ise of t he right of free speech The first step in our TCPA analysis is to dete rmine whether Kadow
demonst rated that G rauerholz ’ s defamation action is based on or is in respons e to her exercise of the right of free spee ch or t h e right to petition

. See Te x. Civ. P rac . & Rem.
Code Ann . § 27.00 5(

b )

. We b egin with the right of free spe ech.
The TC PA defines “ e xercise of the right of free speech” as “ a communication
made in connecti on with a matter of public co ncern . ” I d. § 27 .00 1 ( 3)

.

“ C ommunication ” includes “ the making or submitting of a statement or d ocument in any form or medium, including

. . . electronic

. ” Id. § 27.00 1 (1)

. A nd “ m atter of public concern ” includes a st atement regarding “ a matter o f political, soci al, or other
i ntere st to the community ” or regarding “ a subject of concern to the public

. ” 5 Id. § 27.00 1 (7)(B), ( C)

.

5 Grauerholz argues that Kadow ’ s email d oes not rela te to a matte r of public concern because he is not a public official, public figure, or ce leb rit y. But that sta tu s applies to only one definition of “ matter of public con cern. ” See Tex. Civ. Prac. &8

Graue rholz ’ s legal action against Kadow is based on his allegation that her email to Camp is defamato ry . There is no q ues tion tha t Kadow ’ s e mai l is a

commu nication

. See i

d. § 27.00 1(1) ; Li

ppincott v. Whisenhunt

, 462 S.W.3d 507, 509 (Tex. 2015) ( stating t hat the TCPA applies to both public and private communication ). The question is whether the portion about which Graue rho lz complains

— t he sta tem ent

t ha t he is being crim inally investigated for f raud, elder abuse , misappropriation of funds, theft, and kidnapping

— is a statement regarding matters of inter est to the community or regarding subjects of concern to the public

. S ee Tex. Ci v. Prac. & Re m . C ode An n. § 2 7.00 1 (7)(B), ( C )

.

“ [ S ] peech deals w

ith mat ters of public concern when it can be fairly considered as relating to any matter of poli tical, social, or other concern to the communi ty. ” Brady v. Klentzman , 515 S.W.3d 878 , 8 8 4 (Tex . 2017) ( inte rna l quo ta tion m arks
omitted ). M ore specifically, the com mission of a crime is a matter of public concern

. I d. ; see , e.g. , Adams , 547 S.W.3d a t 897 ( concluding that email alleging deve loper engaged in unspec ified criminal conduct hel d to be of public con c er n) ; M ed iaOne , L.L.C. v. Hende rson , 592 S.W.3d 933, 940 (Tex. App.

— Tyler 2019 , pet. denied

) ( holding that publication reporting criminal activity held to be of public con c ern)

. 6

Rem. Code Ann . § 27.00 1( 7 ) (A)

. Here, w e ar e co nce rn ed wi th t he other two definitions of that phrase. See id. at § 27.00 1( 7 ) ( B ) , ( C)

.
6 T hese cases were decided under th e prior version of the TCPA

. T hey remain in structive , though, because the definition of “ matter of public concern ” app lic able9

Indeed, t he San Antonio and Dallas c ourt s of a ppea ls have both recogniz ed c rim inal
mi strea t ment of animals as b eing matt er s of publ ic con cern . See Mald onado v. Franklin , No. 04

- 18

- 00819

- CV, 2019 WL 4739438, at *7 (Tex. App.

— San Anto nio Sept. 30,
2019 , no pet. ) (mem. op.) ; Duncan v. Acius Grp., L P , No. 05

- 18

- 01432

- CV, 2019 WL
439 250 7, at * 4 (Te x . App.

— Dallas Sept. 13, 2019 , no pet. ) ( mem. op.)

. Criminal mistreatment of people, including e lder abuse and k idn apping , are even more clearly matters of public con cern. We conclude that Kadow ’ s allegati on that G rau erholz was under c ri mi nal
inve st igati o n was a statement rega rding a matte r of interest to the community and regarding a subject of concern to the public. See Tex. Civ. Prac. & Rem. C ode Ann

. § 27.00 1( 7 ) (

B ) , (C)

. Kadow therefore sustained her burden o f d emonstrating tha t
G raue rho lz ’ s le gal a ction is based on or in respon se to her exercise of the rig ht of free speech. See id. § 27.005 (b)

. Accordingly, it is not necessary to address whether she
also demonstrated that the action is based on or in respon se to her e xercise of the rig ht to p etiti on. D. Prima facie cas e of d efamati on
Once Kadow sustained he r initial burden under the TCPA , the burden shifted
to Grauerholz to establish by clear and specific evidence a prima facie case for each
essential elem ent of his defamation clai m . See id

. § 2 7.005 ( c )

. Unlike in mos t othe r
h er e is br oader t han the definit ion under the p rior version

. See Act of May 17, 2019, 8 6 th Leg., R.S., ch. 378 , H.B. 2730 , § 1 1 ( eff ective Sept. 1, 2019 )

.10

contexts, a trial court considering a TCPA motion to dismiss may consider a party ’ s pleadings as evidence. See In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)

. But ge neral allegations th at w oul d sat is fy th e “ fair notice ” pleading
standard are not sufficient to satisfy the TCPA ’ s “ clear and specific evidence ”

r equire ment
. Id

. “ Instead, a pl aintiff must provide enough detail to show the factual
basis for its cla im. ” Id. at 591

. The essen tial el ement s of a defamation cl aim are that “ the defendant: (1) pu blished a statement; (2) that was defamatory concerning the pla intiff; (3) while acting with either actual malice, if the plaintiff was a public of ficial or public figure, or negligence, if the pl ainti ff wa s a private indiv idual, regarding the truth of the

statement. ” WFAA

- TV, Inc. v. Mc Lemore , 978 S.W.2d 568, 571 (T ex. 1998)

. The defendant must also prove damages unless the statement constitute s d efamation per

se. D Magazine Partners, L. P. v . R os ent ha l , 52 9 S.W.3d 429, 434 (Tex. 2017)

. The
supreme cour t has m ade cl ear that a plaintiff seeking to survive a TCPA mot ion to
dismiss is r equi red to establish a prima facie case on each of th e se elem ents
. See i d

.
at 434 , 439

. I n th is c ase , t he on ly evidence t he trial court could consider concerning the
elements of Grauer holz ’ s defamation c laim was Gr auerholz ’ s petition

. 7 Grauerholz

7 Grauerholz appended four unauthenticated pages of Kadow ’ s dep osi tion to his petition. Even if these p ages co uld be c on s idered as evidence, their content does not relate to t he elements of defamation.11

offered his own live testimony , but the TCP A does not authorize a court to consider
such testim ony . See T ex . C iv. P rac. & Rem. C ode Ann

. § 27.00 6 (a) (authorizi ng the
court to consider “ the ple adings, evidence a court could consider under Rule 166a,
Texas Rules of Civil Proc edure, and supporting an d opposing affidavits ” ) ; Tex. R.
Civ. P . 166a ( “ No o ral te sti mo ny s h all b e received at the hearing

. ” )

. At any rate , Grauerholz ’ s testimony did not re late to any element of def amation. I n fact,
Grauerholz did not make any attempt to establish a prima facie case o n any of th e
necessary elements

. Instea d , he o pp osed Kadow ’ s moti on solely on the grou nd that
she cou ld not invoke the TCPA because she denied having sent the email

. Grauerholz relied on our opinion in Rauh auser v. McGibney , 508 S.W.3d 377 (Tex. App.

— Fort Worth 201 4 , n o pet. ) , disapproved by Hersh v. Tatum , 526 S .W.3d 462 , 467 & n .23 (Tex. 2017) , and the op inion of the Dallas Co urt of Appeals in Pickens v.
Cordia , 433 S.W.3d 179 (Tex. App.

— Dallas 2014 , no pet
. ) , disapproved by Hersh v.
Tatum , 526 S.W.3d 462, 467 (Tex. 2 017 )

. Bo th cases h o ld that a defendant who d enies making a com municatio n cannot ob tain di smissal under the TCPA on free speech grounds

. See Rauhause r

, 508 S.W.3d at 385 ; Pick ens , 43 3 S.W.3d at 188

. But the supreme court has expressly disapproved both cases . See Hersh , 526 S.W.3d at 467 &
n.23

. T he He rsh court e xp lained that “ [ t] he basis of a legal action is not determine d b y the defendant’s admissions or denial s but by the plaintiff’s all egations

. ” Id. at 467

. Thus, w hen the plaintiff’s pleadin gs show that th e actio n is covered by the TCPA ,

“ t h e def endant ne ed s how no more. ” Id

.12

On appeal, Gra uerholz does not pursue his argument that Kadow was precluded fro m invoking the TCPA because she denied having sent the email. He now argues that he es tablished a pri ma facie case of defamation because Kadow ’s

statem en t satisfie s the legal definition of malice

— “t he publication o f a statement ‘ with
kn owledge that it was false or with reckless disr egard of whether it was false or not. ’ ”
McLemore , 978 S.W. 2d at 573

– 74 (q uoting New York Times Co. v. Sulliv a n , 37 6 U.S. 25 4 , 2 80 , 84 S.Ct. 7 10, 726 (1964))

. The only evi dentiary suppor t f or this argument is the
alle gation in Grauerholz ’ s petition that K adow pu blished false statements “ with
malice. ”
We first note t hat G rauerholz applies the wrong fault stand ard

. Th e a ct ual
mali ce s ta ndard a ppl ies only when the plaintiff is a pu bli c official or public figure

. See Lipsky , 460 S.W.3d at 593 ; McLemore , 978 S.W.2d at 571

. There is no evidence , or

eve n an allegation , t h at Grauerholz is a public official or publi c f igure

. The proper

st andard, then, is negligence regarding the tr uth of the statement. See Lipsky , 460 S.W.3d at 593 ; McLemor e , 978 S.W.2d at 571

. In any event, G rauerholz did not present any evidence to supp ort either fault
standard

. W hile Grauerholz ’ s petit ion may be co ns idered as evidence, th at petition

me rel y state s in conclusory fashion that Kadow acted “ with malice

. ” This general allegation doe s not satisfy the TCPA ’s “cle ar and specific evide nce ” r equirement
because it d oes not provide any detail to sh o w the factua l basis of Grauerholz ’ s claim
of malice or fault

. See Lipsky , 460 S.W.3d at 591

.13

Falsity i s also an element of Gr auerholz ’ s defamation claim for which h e was required to make a pr ima facie case by clear and specific evidenc e . See Ros e ntha l , 529 S.W.3d at 441

. “ [A] lthough tr uth is gen erally a defense to defamation, the burden shifts to the pla intiff to prove falsity in cases involving matters of public conce rn . ”
Id. ; see Van Der Lin den v. Khan , 535 S .W.3d 179, 200 (Tex. Ap p.

— Fort Wor t h 20 1 7 , pet. denie d

)

. Grauerhol z ’ s petit

ion mer ely a sserts that Kadow ’ s statement was false. This ge neral allegation, like the allegation of malice, is insufficient t o establi sh a prima
fac ie case by clear and spe cif ic evidence

. See Lipsky , 4 6 0 S.W.3d a t 591

. Grauerholz failed t o s atisfy the “ clear and specific evidence ” requirement as applied to two essential element s of def amation

. He therefore failed to sust ain his
statutory b urden to a

voi d dismissal under the TCPA

. See Tex. Civ . Prac. & R em. Code A nn . § 27.005 (c ). It is th ere fore not necessary to address whether Kadow
established her affirma tive defense of limitations. 8 See id. § 27.005 (d)

. Kadow sustain ed her burden under the TCPA; Gr auer holz did not. Consequent

ly, t he tri al court er r ed by fa il ing t o grant Kadow ’ s TCPA mo tion to

8 The limitat

ions p eriod for defamation is one year. Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a)

. It is undisputed that Kadow ’ s email was sent on A ugust 8, 2018 and tha t G rauerholz filed his origi nal petition on S eptember 10, 20 19 , more than one year later

. Gr auer holz did not plead the discovery rule . He invoked that rule at the dismissal hearing but did not present any evidence to suppo rt it s application

. See Childs v

. H

aussecker , 974 S.W.2d 31, 40 (Tex. 1998) ( e xpl aining that the discovery rule d efer s accrua l of cause of action until plaintiff discovers or reasonably should discover the nature of his injury

).14

di smiss Grauerholz ’ s defamation cla im. See id. § 27.005 (b), (c) ; Castleman v. Internet Money Ltd ., 546 S.W.3d 684, 691 (Tex. 2018)

. Kadow ’ s sole issue is su stained.
E. Ancil lary matters
1. T imel iness of th e motion t o d is miss
Kadow not e s t hat Gr auerholz filed an objection in the trial court asking that
Kadow ’ s T CPA motion be dismissed as untim ely. This objection was filed after the
court allowed th e TCPA motion to b e overru led b y operati on of law. Because the questi o n of timeliness wa s not brought to the court ’ s attention before the motion was
overrule d , that issue does not impact ou r review of th e court ’ s action

. S ee Tex. R. App. P . 33.1 ( stat

ing that error preservation requir es a time ly request, object ion , or moti o n )

. In any eve nt, the record demonst rates that the motion was timely filed.
A TCPA mo tion to dismiss must be filed no later than the sixtie th day after the
date of s ervice

. T ex. C i v. Prac. & Rem. Code Ann. § 27.00 3 (b)

. Gra uerholz ser ved
Kadow on S epte m b er 1 1, 2019. Kado w fi led her TCPA motion on November 1 2 , 2019 , s ixty

- two days later

. But we take judicial no tice that the sixtieth day followi ng S eptember 11, 201 9, was November 10, 2019

— a Sun day, and the sixt y
- first day was
November 11, 2 019

— a national ho li day (Veter an s Day )

. See Chau v. Select Med. Corp ., 582 S.W.3d 413, 416 (Tex. App.

— Eastland 2018 , pet . den ied ) (noting that courts of appeal s may take judicial not ice of legal holidays) ; Muh ammad v. Plai ns Pipeline , L.P. , No. 12

- 16

- 00189

- CV, 2017 WL 2 6 6518 0, at *1 n.2 ( Tex. App.

—

Tyler June 21, 2017 , no pet
. ) (mem. op.) (taking judicial notice of a Saturday and a legal holi day) ; Tex.15

G o v ’ t C ode Ann. § 662.003(a)(7 ) ( recognizi ng Veter ans Day as a national h oliday)

. B ec ause Veteran s Day is a legal holida y in W ichita County , Kadow ’ s filing on November 12, 2019 , wa s timely. See T ex. R. Ci v. P

. 4 ; Miller Brewing Co. v. Villarrea l , 829 S.W.2d 770 , 772 (

Tex. 1 992 ) (concluding that “ legal holiday ” as us ed in rule 4

“ includes a day which the commissio ners court in the county in w hich the case is pendin g has determined to be a holiday, or on which the clerk ’ s office for the court in which the case is pending i s o fficially closed ” )

. 2. Jurisdi ction o f the Dent on County lawsuit
Grauerholz alleges in hi s b rief that Kadow falsely repr esented in h er Denton County lawsuit that she lives in Tarrant Cou nty, Texas. He argues t hat , if Kadow is

not a T ex as resi dent, then the Denton County lawsuit ha s “ a fatal jurisdiction al
defect ” and this Court has a duty to de t ermine th a t jurisdi ction. W e disagree.
The o nly action before us is th e lawsuit filed by Graue rho lz against Kadow i n W ic hita County. Whet her the Denton Cou nty court has jurisdiction over the lawsuit
Kadow filed there is a matter for th at court to det erm i ne . It i s unclear whether Grauerho lz also asserts that there is a jur isdic tional defect
in th e W i chita County case (w hi ch Grauerholz, him self, filed)

. Reg ardless, h e offers only speculation and innuendo concerning Kadow ’ s residency and cit es no lega l

a u thority s u pporting his conte ntion that her true residency would deprive the Wic hita County cour t o f jurisdiction

. Gra uerho lz ’ s jurisdi ctional argument i s o verruled.16 IV. C ONCLUSION Kadow filed a timely motion to dismiss under the TCPA and demonstrate d

t h at Grauer h olz ’ s defamation c laim against her is based on or i s in response t o her

exer cis e of t he right of free s pee ch

. Grauerholz did not establish by c lea r and specific
evidence a prima facie case of each essential element of his d efamation clai m. T he
trial cou r t was thus require d by statute to grant Kadow ’ s motion to dismiss and err ed by fa i lin g t o do so

. We revers e t he denial by operation of law of Kadow ’ s motion to dismiss and
remand Grauerholz ’ s de famation claim to the trial court for dismissal and for furth e r
proce edings to d etermine court costs, attorney ’ s fees , an d s anctions to be awarded to Kad ow under the TC PA

. See Tex. C i v. P rac. & Rem. Code Ann. § 2 7.009(a) ; Bedford v. Spassoff , 520 S.W.3d 901, 906 (T ex. 2017) ; Van Der Linden , 535 S .W.3d at 2 0 4 (remand i ng claims to trial court for an order of dismiss al )

.
/s/ Dana Womack
Dana Womack Justice
Deli ver ed: February 25, 2021