### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00733- CV

David Martin Cam p and Bargains f or Millionaires LLC d/ b/a Revival, App ellants

v. Dawn P atte rson, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 6-0 0221 2, H ONO RAB LE SUZ ANNE COVI NGTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this interlocutory appea l, David Martin Camp and Ba rg ains for Milli onaire s L L C d/b/a Revival (Revival) challeng e the trial court’s denial of their motion to dismiss pursuant to the Texas Citi zens Participation Act (TCPA or the Ac t ). S ee Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. Dawn Patterson sued Camp and Revival for defa mation, business disparag ement, tortious interfe renc e with prospec tive business rela tions, and intentio nal infliction of emotional distress, citing text messag es and emails Camp sent to Patterson and others. Camp and Revival filed

a motion to dismiss pursuant to section 27.003 of the TCPA, contending that Patterson filed her lawsui t “i n re s p o nse to” their “exerc ise of the rig ht of fre e speec h” under the Act. See id. §§ 27.001(3), .003(a)

. For the rea sons that follow, we aff irm in part, reve rse and rende r in part, and

reve rse a nd rema nd in part.F ACTUAL AND P ROCEDURAL BACK GR OUND Camp was an owner and the CEO of Revival, which sold home g oods boug ht f rom independe nt vendor s and contra cted with independe nt interior desig ners to assist customers with remode ling projec ts. I n Dec ember 2013, Revival contr a c te d w it h Pa tt e r s o n to provide interior desig n service s. I n ea rl y Au gu s t 2015, Patterson stopped working for Revival. At some point prior to Aug ust 4, 2015, Camp’s wife Tara —who was a share holder in the c ompany , had wor ked for the 1
company , and was friends with Patterson—left him. On Aug ust 4, 2015, Camp sent a text messag e to Patterson stating,

J ust F YI y ou are next, s imply beca use I know y ou are behind the scene s instigating Tara ’s moves and telling her wh at t o d o . You two cre ated fra udulent invoices to make money to start a business, and lied. That’s fra ud and embezzlement, Tara is not an owner she is a share holder and has zero rig hts to money or corpor ate proper ty

. You 100% will stand acc ountable along side her. Might wanna g et y our hubby rea dy for the big one! I will not stop until she is in jail a nd held acc ountable for what she has done. Y ou will join her.
On Aug ust 8, 2015, Camp ag ain texted Patterson stating,

Dawn, a s y ou are likely

awa re by now I

have f ound ever y thing. All evide nce tr ails proving full fra

ud, embezzlement, brand infring ement, theft, o fficia l document tampering , conspirac y , co n s p i rac y to defr aud family courts by moving money and much much more. You know them all so no [poi nt rec ounting them for y o u . ]

. . . want my kids home by the end o f S at u rd ay and all the cash Tara has taken so far including what’s in the BB VA acc ount. None of this is neg otiable. Tara has nothing left here for her any

more. She will not have any money , the kids or reviva l [si c]. She needs to g o and y ou need to disappe ar like y ou [never existed]

. 2

For clar ity , we r efe r to Tar a Camp by her f irst name. 1 On the co p i es of the text messag es contained in the appellate rec ord, some words are 2 omitted, as ref

lected by the ellipsis in the above quote. The br acke ts indicate words omitted fr om

2Approxim ately two wee ks later, Camp sent emails to two of Revival’s vendors, Elk

Group I nterna tional and Codarus. The email to Elk Group I nterna tional, dated August 18, 2015, rea d

as follows: “I am the owner of reviva l [si c] and have discovere d multipl e fra ud instances involving Tara and Dawn. I am asking that y ou please suspend all acc ount activity until this matter has been resolved leg ally .” The essentially identical email to Codarus, dated August 19, 2015, stated: “I am the owner of Revival in Austin TX and I have rec ently discovere d multipl e potential fra ud instances involving 2 employ ees, Tara Camp and Dawn Patterson. I am ask [si c] that y ou please suspend all

acc ount activity for Revival until this matter has been resolved leg ally

. Please do not communicate with or rec eive or ders f

rom either of

these two pe ople.” On September

18, 2015, Patterson, throug h her attorney , demande d that Camp and Revival retra ct the statements, which she claimed wer e defa matory

. Wit hin day s, Camp beg an sending g roup text messag es to Patterson and Tara

. These text messag es wer e lace d with profa nity and inclu d e d n a

me - c a ll ing , threa ts, and internet memes sug g esting that the women wer e incompetent and that Camp hated them. C am p called both women “delusional,” “disg usting humans,” and “g rotesque huma

n being s” for whom he has “zero respe ct”; acc used them of “ly ing,” “dec eiving ,” and having “[messed up] 100% of all [t heir] jobs at reviva l [si c]”; stated that “if either of y ou work
out of a simil ar place , try to sell g oods simil ar to reviva l [si c], or come near 15 miles of reviva l [si c]
to set up shop we will stay in court until we are all broke. Try me”; and asked Patterson if, while she

was in town, she wanted to “swing by so I can say hi and also shove a larg e pole up y our asshole.” 3
the copies of

the messag e but supplied in Patterson’s petition and not disputed by Camp. I n her aff idavit, Patterson testified that Camp’s behavior so “ter rified” her that she repor

ted 3 it to the police. I n her petition, she alleg ed that Camp was subsequently arr ested and char g ed with 3I n May 2016, Patterson broug ht suit ag ainst Camp and Revival, asser ting claims of defa mation, business disparag ement, tortious inter fer ence with pr ospective business rela tions, and intentional infliction of emotional distress, all predic ated on the text and email messag es. Camp and Revival filed a motion to dismiss under the TCPA, contending that Patterson’s claims wer e “base d
on, rela te[] to, or [were] in r esponse to” the “exerc ise of the rig ht of fre e speec h,” as define d in the Act, beca use they wer e “made in c onnection with a matter of public conce rn.” See id. § 27.001(3) (def ining “exerc ise of the rig ht of fre e s p ee ch ” as “a communication made in connec tion with a
matter of public conce rn”) , (7) (def ining “matter of public conce rn”) , .003(a) (providing that party
may file motion to dismiss leg al action if it is “base d on, rela tes t o , or is in response to a party ’s exercise of the rig ht of fre e speec h”). Specifica lly , Camp and Revival argued t h at the text s and emails at issue wer e communications “made in connec tion with a matter of public conce rn” beca use they “re late[d] to” “g ood[s] and product[s sold in] the marke tplace.” See id. § 27.001(7)( E) (i dentify ing as matter of public conce rn “an issue rela ted to

. . . a g ood, product, or service i n t h e

m ar k etplace ”). Camp and R evival further arg ued that Patterson had not established a prima facie

case for her claims. See id. § 27.005(c) (re quiring dismiss al if Act applies unless plaintiff establishes prima fac ie case ). Camp and Revival also soug ht attorney ’s fee s, expenses, and sanctions. See id. § 27.009 (a) (1), ( 2).

C am p an d Revival attache d to their motion to dismiss Camp’s aff idavit. I n h i s aff idavit, Camp stated that he had sent text messag es to Patterson ad d re ssing fra ud issues he had discovere d and had sent two emails to “two of Revival’s p ri m ary vendors/produc t suppliers

misdemeanor ha

rassment. 4reg arding [P atterson’ s] activit ies while working for Revival.” He explained that the vendor acc ounts

wer e “fina

ncial based cre dit lines and multipl e employ ees/staf f have acc ess to the acc ounts” and that “bec ause of the financ ial nature of the acc ounts any susp ec t ed fra ud require s a revie w of the

acc ounts.” He further explained that he had asked the vendors “to suspend acc ess to the acc ount by specific name and informed the vendor of the fra ud potential for a revie w of acc ounts activity until [he] could deter

mine the extent of [P atterson’ s] fra udulent activities while wo rk i n g for Revival.” Patterson responde d to the motion and attache d copies of the text messag es and her aff idavit denying the alleg ed fra

udulent conduct. Following a hear ing, the t ri al court denied the motion without specify ing its rea soning. This interlocutory appea l followed. See id. § 51.014(a) (12) (providing for 4
appea l from interlocutory order deny ing motion to dismiss under se ction 27.003).

TCP A DISMISSAL MECHANISM AND STANDARD OF REVIEW The TCPA is often char acte rized as an “anti-SL APP” statute, i.e., a means by which defe ndants targ eted by “Strateg ic L awsuits Ag ainst Public Participation,” or SL APP, suits can move for dismiss al of such lawsuits. See id. § 27.002; see, e.g. , Serafine v. B l unt ( Serafine I) , 466 S.W .3d 352, 365–67 (Tex. App.—Austin 2015, no pet. ) (P em berton, J ., concur ring ) (summarizing TCPA leg islative history and emphasis on “ant i -S L AP P ” conce rns). The TCPA allows a motion to dismiss a “leg al action” that is “base d on, rela tes to, or is in response to a party ’s exercise of,” as rela tes to this appea l, “the ri gh t o f fre e speec h.” Tex. Civ. Prac. & Rem. Code

At the conclusion of the hear ing, the trial court stated on the rec ord that it did “not believe 4 that the iss u e i n t h i s ca se is rela ted to a g ood, product or service in the marke tplace under the [TC PA] ,” but the t rial court did not reduc e any such determination t o wr i t i n g throug h its order or separ ate f indings. 5§ 27.003(a)

. The Act define s “the exercise of the rig ht of fre e speec h” as “a communication made

in connec tion with a matter of public conce rn.” Id. § 27.001(3). A “matter of public conce rn” is d efine d as, rele vant to this appea l, “an issue rela ted to

. . . a g ood [or] product

. . . in t h e marke tplace.” Id. § 27.001(7)( E). A “‘[c]ommuni cation’ includ es the making or submitt ing of a
statement or document in any form or medium, including oral, vis u al , wr i t t en, audiovisual, or elec tronic.” Id. § 27.001(1). The Texas Supre me Court has held that the Ac t protects both public and private communications. See Exx onMobil Pipeline Co. v. Coleman , 512 S.W .3d 895, 899 (Tex. 2016) (per curiam) (explaining its holding in Lippincott v. W hisenhunt , 462 S.W .3d 507, 509 (Tex. 2015) (pe r cur iam)).

I n enac ting the TCPA, the leg islature explained that its overa rching purpose is “to

encour ag e and safe g uard th e c o n s ti tu ti o n a l r ig hts of persons to petition, speak fre ely , associate fre ely , and otherwise participa te in g overnme nt to the maxi mum extent permitted by law and, at the same time, protec t the rig hts of a person to file meritorious lawsuits for demonstrable injury .” Tex. Civ. Prac. & Rem. Code § 27.002. “To e ffe ctuate the statute’s purpose , the L eg islature has pr ovided a two-step proce dure to expedite the dismiss al of claims bro u gh t t o intimi date or to silence a defe ndant’s exerc ise of these First Amendme nt rig hts.” Coleman , 512 S.W .3d at 898. I n the first step, the party filing a motion to dismiss under section 27.003 of the TCPA bear s the burden to show by a “pre pondera

nce of the evidenc e” that the “leg al action” is “base d on, rela tes to, or is in response to,” as rele vant to this appea l, the p ar t y ’s “e x erc ise of the rig ht of fre e speec h.” Tex. Civ. Prac. & Rem. Code §§ 27.003(a) , .005(b); Colema n , 512 S.W .3d at 898. I f the movant satisfies this burden, the trial court must dismiss the lawsuit unless the nonmovant “esta blishes by cl ea r and

6specific evidenc e a prima fac ie case for eac h essential element of the claim in question.” Tex. Civ.

Prac. & Rem. Code § 27.005(c) ; see Coleman , 512 S.W .3d at 899. Even when the nonmovant meets this burden, howev er , the trial court still must dismiss the lawsuit if the movant “esta blishes by a preponde ranc e of the evidenc e eac h essential element of a valid defe nse to the nonmovant’s claims.” Tex. Civ. Prac. & Rem. Code § 27.005(d); see Coleman , 512 S.W .3d at 899. I n deter mining whether
to dismiss an action, the trial court must consider “the pleading s and supporting and o p p o sing aff idavits stating the fac ts on which the liability or defe nse is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a) ; see Se rafine I , 466 S.W .3d at 357. Our analy sis require s statu to r y c o n s tr u c tion, which is a question of law that we revie w de novo. See Coleman , 512 S.W .3d at 899. Our primary conce rn is the express statutory lang uag e. See Galbraith Eng’g Consultant s, Inc. v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009). “If that lang uag e is unambig uous, we interpre t the statute ac co rd ing to its plain meaning .” Lippincott , 462 S.W .3d at 509. “Additionally , ‘[we] presume the L eg islature included eac h word in the statute for a purpose and that words not included wer e purposef ully omitted.’” Coleman, 512 S.W .3d at 899 (quoting Lippincott , 462 S.W .3d at 509). “We are also mindful tha t the leg islature has direc ted us
to construe the Act ‘libera lly to eff ectua te its purpose and intent fully .’” Lippincott , 462 S.W .3d at 509 (quoting Tex. Ci v. Prac. & Rem. Code § 27.011(b))

.

DISCUSSIO N Appli cation of T CP A

Ba sed on the rele vant provisions of the TCPA, the Act applies if Patterson’s claims

are one or more “leg al actions” that are “base d on, re l at e[ ] to, or [are] in response to”

7“communications” “made in connec tion with” “an issue rela ted to” “a g ood [or] product

. . . in the

marke tplace.” See Tex. Civ. Prac. & Rem. Code §§ 27.001(1), (3), (6), (7)( E), .003(a) , .005(b). The parties do not dispute that Patterson’s claims are “leg al actions” that are “based on, rela te[] to, or [are] in response to” the text and email messag es sent by Camp. See id. §§ 27.001(6) (def ining “leg al action”) , .003(a) (providing that party may file motion to dismiss if “leg al action” is, rele vant
to this appea l, “base d on, rela tes to, or is in response to a party ’s exercise of the rig ht of fre e speec h”), .005(b) (p ro v i d i n g, rele vant to this appea l, for dismiss al of “leg al action” that movant shows by preponde ranc e of evidenc e is “base d on, rela tes to, or is in response to a party ’s exercise of the rig ht of fre e speec h”). Nor do t h ey d i s p u te that the text and email messag es wer e “communications” within the meaning of the TCPA. See id

. § 2 7

. 0 01(1) (def

ining “communication”

as “the making or submitt ing of a statement o r d o cu m en t i n any form or medium, including

. . . elec tronic”) ; Coleman , 512 S.W .3d at 899 (s t at i n g t hat email statements fall within statutory d efinit ion of communication). Rather, they join issue on whether any of the text and email communications wer e “made in connec tion with a matter of public conce rn,” i.e, whether they wer e “made in c onnection with” “an issue rela ted to” “a g ood [or] product

. . . in the marke tplace.” See Tex. Civ. Prac. & Rem. Code § 27.001(3) (def ining “exerc ise of the rig ht of fre e speec h” as “communicatio n m ad e in connec tion with matter of public conce rn”) (7)( E) (def ining “matter of public conce rn” to include “an issue rela ted to” “a g ood [or] product in the marke tplace” ). I n their second issue, Camp and Revival argue that the trial court err ed in de ny ing their motion to dismiss

5

Although Camp and Revival state five issues, “I ssue 1” is mere ly a rec ital of the applicable 5 standard of

revie w. Acc ording ly , we do not addr ess it as a substantive issue. 8beca

use text and email m es s age s q ualified as “exerc ises of their rig ht of fre e speec h” as “communications made in connec tion with matters of public conce rn,” specific ally issues rela ted to the g oods and products provided by th e v endors to Revival and, in turn, sold by Revival in the marke tplace. See id. § 27.001(3), ( 7)(E)

.

Although the messag es on which Patterson’s cause s of action are based wer e private,
not public, communications, “[t] h e p l ai n lang uag e of the statute imposes no require ment that the form of the communication be public.” See Lippincott , 462 S.W .3d at 509 (stating that, in absenc e of limit ing lang uag e, “we must presume that the L eg islature broadly included both public and private communications”). Thus, Camp and Revival have met their burden to show that the TCPA applies if messag es wer e “made in connec tion with ” “a n i s s ue rela ted to” “a g ood [or] product

. . . in the marke tplace” and therefor e were “ made in conne ction with a matter of public conce rn.” See Tex. Civ. P rac . & Re m. Code § 27.001(3), (7)(E) ; Lippincott , 462 S.W .3d at 509 (stating that statutory definition of rig ht of fre e speec h “has two components : (1 ) t h e exercise must be made in

a commun i ca t ion and (2) the communication must be made in connec tion with a matter of public conce rn”)

.

I n Coleman , the Texas Supreme Court held that the TCPA does not require that the communications specific ally mention the matter of public conce rn. 512 S.W .3d at 900 (stating that TCPA does not require that statements mention health, safe ty , envir o n me n ta l, or economic conce rns,
matters of public conce rn involved in Coleman ); see T ex . Civ. Prac. & Rem. Code § 27.001(7) (def ining “matter of public conce rn” as “an issue rela ted to (A) health or safe ty ; (B ) environmenta l, economic, or community well-be ing; ( C) the g overnme nt; ( D) a public officia l or public fig ure; or

9(E) a g ood, product, or service in the marke tplace” ). The Texas Supreme Court further held that the

Act does not r equire more than a “tang ential rela tionship” to the matter of public c oncer n and that construing the term “in connec tion with” as sug g esting “something mor e t h an a t enuous or remote relationship” would be “rea ding la ng uag e into the s tatute t hat i s not there .” See Coleman , 512 S.W .3d at 900–01 (over turning court of appea ls’ conclusion that communication must involve

more than tang ential rela tionship to matter of public conce rn) (interna l quotations omitted). Rather, the Coleman court conclude d that, for the TCPA to apply , the communicati o n s must only be “‘in

connec tion with’ ‘issue[s] rela ted to’

. . . identified m at ters of public conce rn chosen by the L eg islature.” Id. (quoting Tex. Ci v. Prac. & Rem. Code § 27.001(3), ( 7)).

Coleman involved s tatements by Coleman’s supervisors in internal repor ting documents and to an investigator that Coleman, a terminal technicia n, violated company policy by fa i l i n g t o g aug e a tank and then repor ting otherwise. See 512 S.W .3d at 897–98. Coleman sued Ex x onMobil and his two supervisors for defa mation, alleg ing that their statements wer e untrue. Id.
at 897. Although no harm resulted from Coleman’s al l eg ed failure to g aug e the tank, one of the supervisors offe red aff

idavit testimony that failure to g aug e tanks can cre ate serious safe ty and environmenta l risks, endang er employ ee’ s health, and aff ect Ex x onMobil’s economic interests. Id.
at 8 9 8

. T h e Texas Supreme Court held that, althoug h the statements wer e private and among E x x onMobil employ ees, they rela ted to a matter of public conce rn “bec ause they conce rned Coleman’s alleg ed failure to g aug e [a] tank

. . . , a proce ss completed, at least in part, to reduc e the potential environmenta l, health, safe ty , and economic risks associate d with nox ious and flammable chemica l overfilling and spilling onto the g round.” Id. at 901.

10The Texas Supreme Court’s g uidance in Coleman informs our analy sis here

. We are 6 mindful t h at t h e communications need not direc tly mention or have more than a tang ential

connec tion with the issue rela ted to a g ood or product in the marke tplace. Id. at 900–01. The email
messag es, on which Patterson’s claims for defa mation, business disparag ement, and t o rt i ous interfe renc e wer e based, expressly conce rn Patterson’s and Tara ’s alleg ed fra ud in connec tion with invoices for Revival’s go o d s and products, Revival’s acc ount activity in purcha sing g oods and products from vendors Elk Group I nterna tional and Codarus, and the susp en sion of Revival’s

acc ount a ctivity

/orders for g oods and products with E lk G roup I nterna tional a nd Codarus until the matter of alleg ed fraudulent invoi ces could be resolved. The tex t messag es, on which Patter son’s intention al infliction of emotional distress claim was fac tually predic ated, wer e made in

connec tion—some direc tly and some t an gen t i ally —with issues rela ted to invoices for g oods and products boug ht by Revival for resa le in the marke tplace, Patterson’s and Tara ’s alleg ed cre ation of fra udulent invoices for those g oods and products, and their intent to sell g oods simil ar to those sold by Revival. See id. at 901.

Our analy sis is further informed by a rec ent decision by this Court holding that the TCPA 6 was applicable to cer

tain communications that had a simil arly remote or tenuous connec tion to the matter of public conce rn at issue. See Cavin v. Abbott , ___S.W .3d ___, No. 03-16-00395- CV, 2017 Tex. App. L EXI S 651 1 , at * 1

– 1 1 , *31–43 (Tex. App.—Austin J uly 14, 2017, no pet. h.) (desc ribing communications , which included persona l slurs and insinuations, and construing analog ous rela tional terms “re lates to” and “in response to” as used in sections 27.003 and 27.005). Specifica lly , this Court held that the leg al action was “re lated to” the movant’s exercise of the rig ht of fre e speec h in the sense of “being rooted in a common controve rsy , or as having overla pping fac ts and evidenc e” or was “in response to” the movant’s exercise of fre e speec h “in the sense of rea cting to or temporally following .” See id. at *37–43 (following rea soning in Coleman , apply ing plain meaning of “re lates to” and “in response to,” and holding that TCPA applied to all claims asser ted except claim for assault, expressly excluded by section 27.010(c) ). Simi larly , the t ex t and email messag es here —even the p e r s onal attacks—w ere rooted in a common controve rsy conce rning g oods and produc ts in the marketplac e or w ere made in re action to that controve rsy . 11I n light of the broad statutory lang uag e, and particula rly in light of the Texas Supreme Court’s application of the Act to the facts in Coleman , we are compelled t o conclude that the t ext and email messag es in this case , althoug h private, rela ted to “ matter[s] of public conce rn” beca use they wer e “made in connec tion with” “issue[s] rela ted to” “g ood[s and] product[s] ” sold by Revival “in the marke tplace.” See Tex. Civ. Pr ac . & R em . C o de §§ 27.001(3), (7)( E), .003(a) , .005(b); Coleman , 512 S.W .3d at 900–01 (citing Tex. C iv. Prac. & Rem. Code § 27.001(7)( A), (B ) and concluding that statements made by Coleman’s supervisors rela ted to matter of public conce rn beca use they conce rned issues rela ted to environmenta l, health, safe ty , and economic conce rns); Lippincott , 462 S.W .3d at 509 (holding that plain languag e of Act imposes no re q u i re m ent that communication be public); Cavin v. Abbott , No. 03-16-00395- CV, 2017 Tex. App. L EXI S 6511, at *37–43 (Tex. App.—Austin J u l y 1 4 , 2017, no pet. h.) (conc luding that TCPA applied to communications that included private slur s a n d insinuations). Acc ording ly , we further conclude that Camp and Revival succe ssfully established that t h e T C P A applies to Patterson’s lawsuit. See Coleman , 512 S.W .3d at 901 (conc luding th at C o leman met burden to show TCPA applied to lawsuit wher e communications rela ted to environmen t al, health, safe ty , and economic conce rns). And even if any specific content included within the complained- of comm u n i ca t ions would not independe ntly qualify as “made in connec tion with an issue rela ting to a matter of public conce rn,” it would rema in that Patterson’s “leg al actions” at least “re lated to” content th at did qualify , establishing the Act’s applicability , as all of the claims stem from the same underly ing nucleus of fac ts. See Cavin , 2017 Tex. App. L EXI S 6511 at *37–43. We sustain Camp’s and Revival’s second issue.

12P rim a F acie Case Having conclude d that the TCPA applies to Patterson’s leg al action, we turn to Camp and Revival’s fourth issue, in which t h ey ar gu e that Patterson failed to prese nt clea r and specific evidenc e establishing a prima fac ie case for eac h essential element of her claims. See Tex. Civ. Prac. & Rem. Code § 27.005(c) (providing that trial court may not dismiss leg al action if nonmovant shows by “cle ar and specific evidenc e prima fac ie case for eac h essential element of claim in question”). Although the trial court did not rea ch this issue, it was befor e the trial court in Camp’s and Revival’s motion to dismiss , see id. § 27.0005(b)–( d), and “no additional trial-leve l proce eding s

are nece ssary

for the issues to be judi cially deter mined,” see Cavin , 2017 Tex. App. L EXI S 6511,
at *43–44 (re aching issue of prima fac ie case and citing Serafine I , 466 S.W

. 3 d at 3 5 7 (“ W e . . . revie w de novo a trial court’s determination o f whether a [ TCPA] nonmovant has presented clear and specific evidenc e es tablishing a prima fac ie case for eac h essential element of the challeng ed claims.”)) ; see also Coleman , 512 S.W .3d at 902 (re manding to c ourt of appe als for c onsideration of proof of prima f

acie case ). Patterson’s burden “ca

n be restate d in terms of three components: (1) with respe ct
to ‘ea ch essential element of [each] claim in question,’ [she] must have prese nted (2) a ‘prima fac ie ca se’ (3) by ‘cle ar and specific evidenc e.’” See Cav in , 2017 Tex. App. L EXI S 6511, at *44;

see also Hersh v. Tatum , ___ S.W .3d ___, No. 16-0096, 201 7 T ex . L E XIS 649, at *11–12 (Tex. J une 30, 2017). The essential elements are the fac ts that a party must plead and prove to obtain relief

on a claim. Cavin , 2017 Tex. App. L EXI S 6511, at *44; see In re Lipsky , 460 S.W .3d 579, 592–96 (Tex. 2015) (orig

. proce eding ) (addr essing essential elements of nonmovant’s business

13dispa rage ment and defa mation claims). “‘[P] rima fac ie case ’ has a traditional leg al meaning

. I t

re fe rs to evidenc e sufficie nt as a matter of law to establish a g iven fac t if it is not rebutted o r
contra dicted. I t is the minimum quantum of evidenc e nece ssary to support a rational infere nce that the alleg ation of fac t is true.” Lipsky , 460 S.W .3d at 590 (interna l citations and quotations omitted). Be cause the TCPA does not define “cle ar and specific evidenc e,” we g ive those terms their ordinary meaning s. Id. “The words ‘cle ar’ and ‘spec ific’ in the context of this statute have been interpre ted
respe ctively to mean, for the former , ‘unambig uous,’ ‘sure ,’ or ‘fr ee from doubt’ and, for the latter, ‘explicit’ or ‘re lating to a particula r named thing.’ ” Id. (quoting KTRK Television, Inc. v. Robinson , 409 S.W .3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (quoting Black’ s Law Dictionary 268, 1434 (8th ed. 2004) (interna l quotations omitted))). “Collectively , these elements require that a party ‘provide enoug h detail to show the fac tual basi s fo r i t s cl aim’

. . . .” Cavin , 2017 Tex. App. L EXI S 6511, at *45 (quoting Lipsky , 460 S.W .3d at 591).

Patterson asser

ted four cause s of action ag ainst Camp and Revival: (1) defa mation, (2) b u s i n ess disparag ement, (3) tortious interfe renc e with prospec tive business rela tionships, and (4) intentional infliction of emotional distress. We addre ss defa mation and business disparag ement toge ther a nd the re maining c laims in turn.
Def am ation an d Busi ness Disparagem ent “B usiness disparag ement and defa mation are simil ar in that both involve harm from the publication of false information.” Lipsky , 460 S.W .3d at 591 (citing W aste Mgmt. of Tex., Inc.

v. Texas Disposal Sys. Landfil l, Inc. , 434 S.W .3d 142, 155 (Tex. 2014)). The elements of defa mation are (1) publication of a false sta tement of fa ct to a third par ty , (2) that wa s defamatory

14conce rning the plaintiff, (3) while acting with either actua l malice, if the plaintiff is a public officia l,

or wit h neg lige nce, if the pl aintiff is a private individual, reg arding the t ruth of the state ment, and (4) damag es unless the stat ement constitutes defa mation per se. D Magazine Partners, L.P.

v. Rosenthal , ___ S.W .3d ___, No. 15-0790, 2017 Tex. L EXI S 296, at *9–10 (Tex. Mar. 17, 2017); Lipsky , 460 S.W .3d at 593. Whether st atements are defama tory is a question of l aw su b j ect to de

novo revie w. Rehak Creative Servs., Inc. v. W itt , 404 S.W .3d 716, 723 (Tex. App.—Houston [14t h Dist.] 2013, pet. denied) , disapproved on other grounds , In re Lipsky , 460 S.W .3d at 587, 591. “To
preva il on a business disparag ement claim, a plaintiff must establish that (1) the defe ndant published false and di spara g ing information about i t, (2) with malice, (3) wit hout privileg e, (4) that resulted in specia l damag es to the plaintiff.” Forbes Inc. v. Granada Bioscis., Inc. , 124 S.W .3d 167, 170 (Tex. 2003) (citing Hurlbut v. Gulf Atl. Life Ins. Co. , 749 S

. W

. 2 d 7 62, 766 (Tex. 1987)); accord Lipsky , 460 S.W .3d at 592.

Patterson’s cause s of action for defa mation and business disparag ement are based on the t wo em ai l s C amp sent to Revival’s vendors in which he stated that Patterson and Dawn had commit t ed fr aud. On appeal, C amp and Revival challeng e only whether Patterson established by clea r and specific evidenc e a prima fac ie case that the email communications wer e false. Patterson

ar gu es that as a private plaintiff suing non-media defe ndants, she is entitled to a presumpt i o n of falsity

. We ag ree with Patterson as to her defa mation claim but disag ree as t o h er claim for business disparag ement.

Even if we we re to assume that the TC PA’s vastly expansive definition of “matter of public conce rn” for purposes of statutory cover ag e has rele vance to the assig nment of the burden

15of proof under constitutional law, “neither the United States Supreme Court nor the Supreme Court

of Texas has require d a private plaintiff to prove the falsity of defa matory statements in suits ag ainst nonmedia defe ndants, even when the statements are on matters of public conce rn.” Cummins v. Bat W or l d S a n ct uary , No. 02-12-00285- CV, 2015 Tex. App. L EXI S 3472, at *28 (Tex. App.—For t Worth Apr. 9, 2015, pet. denied) (mem. op). I nstead, falsity is presumed. In the absence of clea r g uidance from the United States Supreme Court or the Texas Supreme Court, we agr ee wi t h t h e

rea soning of our sister court in Cummins and conclude that beca use Patterson is a private individual suing a non-media defe ndant, the burden of proof would not shift to Patterson, and the falsity of the
text and email statements is presumed

. See id. at *28. Camp and Revival have n o t ch alleng ed Patterson’ s p ro o f o f a prima fac ie case as to any other elements of her defa mation claim. Consequently , we need not addre ss those elements. SeeTex. R. App. P

. 38.1(i) (appellant’s brief
must contain clea

r and concise argum en t for contentions made with citation to authorities and rec ord). Acc ording ly , we overr ule Camp’s an d Revival’s fourth issue as to Patterson’s defa mation claim.

On the other hand, a business disparag ement plaintiff must establish falsit y . S ee Lipsky , 460 S.W .3d at 592 (holding that “a plaintiff must establish that

. . . the defe ndant published false a n d d is p a r a g in g in f o r m a t i o n a b o u t i t ” ) ; M o ld o v a n , N o . 0 5

- 1 5

- 0 1 0 2 , 2 0 1 6 T e x. A p p . L E X I S 8 2 8 3 , at *18 n.4 (Tex. App.—Dallas Aug

. 2, 2016, no pet.) (stating that plaintiff “must p rove falsity ” (citing W aste Mgmt. , 434 S.W .3d at 155 (listing elem en t s o f business disparag ement claim)). Acc ording ly , we conclude that Patterson bore the burden to establish a prima fac ie case as to the falsity element of her business disparag ement cause of action. We turn, then, to whether Patterson

16established by clea r and specific evidenc e a prima fac ie case that the email statements to Revival’s vendors that Patter son committed fraud w ere false.

I n considering whether a leg al action should be dismiss ed, a court must consider the pleading s and supporting and opposing aff idavits. Tex. Civ. Prac. & Rem. Code § 27.006(a) ; Hersh , 2017 Tex. L EXI S 649, at *11–12 (holding that trial court was oblige d to consider plaintif fs’ pleading s irrespe ctive of whether t h ey h ad been formally offe red as evidenc e). I n her petition, Patterson g ener ally alleg ed the fa ct s as rec ited above, but the only alleg ation rela ted to falsity in

connec tion with her defa

mation claim was the single asser tion that Camp’s statements were false. I n her response to the motion to dismiss , she argued that t h e two-we ek delay betwee n Camp’s

acc using her of cre ating fra udulent invoices and his advising the vendors to suspend acc ount activity is circ umstantial evidenc e of falsity

. I n her supporting aff idavit, attache d to her response , she stated, “At no point have I eng ag ed in any of t h e fr au d u l ent activity descr ibed by Mr. Camp [i n his aff idavit] .” Camp and Revival contend that Patterson’ s af fidavit statement is conclusory , lacks detail, and does not constitute clea r and specific evidenc e of the falsity of the statements. We ag ree . “B are , basele ss opinions do not cre ate fac t questions, and neither are they a sufficie nt substitut e for the clear and specific evidenc e required to establish a prima fac ie case under the TC PA.” Lipsky , 460 S.W .3d at 592. “Ge nera l aver ments

. . . , without more, do not satisfy the minimum require ments of the TCPA.” Id. at 593 (holding that plaintiff’s aff idavit statem en t t h at i t had “suff ere d direc t pecunia

ry and economic losses,” without any “spec ific supporting fac ts illust rating how [defendant’s] alleg ed rema rks

. . . actua lly cause d such losses,” was insufficient to satisfy TCPA’s require ment of clea r and specific evidenc e of damag es). Such “conc lusory ” alleg ations

17“‘a

re not probative and acc ording ly will not s u ff ice to establish a prima fac ie case .’” Serafine I , 466 S.W .3d at 358 (quoting Better Bus. Bureau of Metro. Hous., Inc. v. Jo h n Moore Servs., Inc. , 441 S.W .3d 345, 355 (Tex. App.—Houston [1s t Dist.] 2013, pet. denied) ).

The sta t em en t s in Patterson’s pleading s and aff idavit are self-se rving and “conc lusory ,” that is, completely devoid of details to support her fac tual infere nce or show the fac tual basis for her claims. See Black’ s Law Dictionary at 351; Lipsky , 460 S.W .3d at 591 (holding that TCPA plaintiff must provide enoug h detail to show fac tual basis for claim ). S h e s tates the fac tual conclusion that the statements are false and that she has not eng ag ed in the alleg ed fra udulent activities but stops short of offe ring any explanation or objectively verifia ble details that could have bee n counter ed by opposing evidenc e. See KBMT Operating Co. v. Toledo , 492 S.W .3d 710, 715–16 (Tex. 2016) (concluding that plainti ff phy sician’s affidavit i n which she stated t hat i t was “appa rent” that her patients wer e “conc erne d ” ab o u t the published statements stopped short of identify ing any conce rned patient and was “self- serving

. . . conclusory hear say ”); see also Campbell

v. Clark , 471 S.W .3d 615, 631 (Tex. App.—Dallas 2015, no pet.) (s tating that aff idavit of defa mation plaintiff in TCPA case containing “‘se lf-ser vin g p r o te s ta

ti o n s o f s in c e rity ’” cannot solely defe at ‘p ro o f of actua l malice’ ” (quoting Bentley v. Bunton , 94 S.W .3d 561, 596 (Tex. 2002)))

. Considering her aff

idavit testimony along with the alleg ations in her petition and response, we
cannot conclude that Patterson met her burden to e stablish by “cle ar and specific evidenc e a prima fac ie case ” of the falsity element of her business di s p ar age m en t cause of action. See Lipsky , 460 S.W .3d at 593; Serafine I , 466 S.W .3d at 361–62 (con cl u ding that nonmovants failed to establi sh prima facie case for ex istence of contra ct i n claim for tortious interfe renc e with contra ct

18wher e aff

idavit testimony indicated possible contra ct but “did not provide detail about the specific
terms of the contra ct or attach

. . . any contra ct or other document memorializing any ag ree ment”). We sustain Camp’s and Revival’s fo u rt h issue as to Patterson’s cause of action for business disparag ement.

Tortious Interference

with Prospective

Busi ness Relation s “To preva il on a claim for tortious inter fer ence with pr ospective business rela tions, the plaintiff must e stablish that (1) there was a rea sonable probability that the plaintiff would have
enter ed into a business rela tionship with a third party ; (2) the defe ndant either acte d with a conscious desire to preve nt the rela tionship from occur rin g or knew the interfe renc e was cer tain or substantially

cer tain to occur as a result of the conduct; (3) the defendant’s conduct was independe ntly tortious

or unlawful; (4) the interfe renc e proxi mately cause d the plaintiff injury ; and (5) the plaintiff suffe red

a c tu a l d a ma g e o r lo s s a s a r e s u lt

. ” Co in m a c h Co r p
. v
. A s p e n wo o d A

p a r tm e n t Co r

p
. , 4 1 7 S. W. 3 d 9 0 9 , 923 (Tex. 2013). L i k e h er defa mation and business disparag ement claims, Patterson’s cause of action for tortious interfe renc e with prospec tive business rela tions appea rs t o be based on the t wo emails Camp s ent to Revival’s vendors. Camp and Revival argue that Patterson’s aff idavit addre sses

none of the elements of tortious interfe renc e with pr ospective business rela tions, with the possible exception of the damag es element. We ag ree . I n her aff i d av i t , she testified that the “base less

acc usations” “have neg atively impacted my ability to start my own business and ear n a living,” and in her response to the m otion to dis miss, she made a virtually identical st atement. I n her petition, Patterson mere ly alleg ed that Camp’s and Revival’s interfere n ce h ad “ca used Plaintiff’s injury , resulting in damag es.” These statements are not sufficie nt to establish a prima fac ie case of the
19damag es ele ment. See Lips ky , 460 S.W .3d at 593 (holding that plaintiff’s affidavit s tatement that

it had suffe red “ direc t pe cuniar y and economic losses,” without any specific supporting f

acts, wa s conclusory and there fore insufficient to satisfy TCPA’s require ment of clea r and specific evidenc e of dama g es). Even if Pa

tt e r s o n ’ s s ta

te ments wer e sufficie nt to prove the damag e element, Patterson failed to establish that there was a re as o nable probability of her enter ing into any prospec tive business rel ationships. I n her petition, Patterson mere ly alleg ed that there was a “re asonable probability

that she would have entere d into a busi ness relationship with a thi rd per son, including but not limit ed to Elk Group I nterna tional and Codarus”—a bare alleg ation she re s t at ed i n her
response —without offer ing a ny specific fac ts to support the conclusion that any such re lationship

was probable

. See Lipsky , 460 S.W .3d at 593 (conc luding that statement without specific supporting facts was conclusory and there fore insufficient to establish element of claim und er T C P A)

. Patterson’s aff

idavit contains no ref

ere nce to any prospec tive business rela tionships. Thus, there is

no evidenc e of a specific party with whom Patterson had a rea sonable probability of entering into

a business rela tionship absent Camp’s emails. See Coinma ch , 4 1 7 S .W.3d at 924 (holding that plaintiff was require d to establish that defe ndant’s “conduc t actua lly interfe red with a rea sonably probable contra ct”) ; Richardson-Eagle, Inc. v. W illiam M. Merc er, Inc. , 213 S.W .3d 469, 476 (Tex. App.—Houston [1st Dist. 2006, pet. denied) (stating that rea sonable p ro bability of relationship is deter mined considering “all of the fac ts and circ umstances attendant to the transa ct i o n ” and concluding that “mer e neg otiations” wer e not sufficie nt). On appea l, Patterson seems to argue that it is rea sonable to assume that “ther e is a rea sonable probabilit y ” of her enter ing into “a business

20rela tionship with one or more sim ilar vendors” because she was “a prospective busi ness owner in

the same industry

as Revival.” H oweve r, assumptions—even r easona ble ones—a

re not e vidence

. Patterson prese nted no evidenc e that there was a rea sonable probability that she would have enter ed into a business rela tionship with any third party but f or the conduct of Camp and Revival and thus failed to e stablish by

clea r and spe cific e vidence a prima f acie case as t o this element of her claim for tortious interfe renc e. See Coinmach , 417 S.W .3d at 923; Richardson-Eagle , 213 S.W .3d at 476. We sustain Camp’s and Revival’s fourth i s s u e as t o Patterson’s cause of action for tortious interfe renc e with prospec tive business relations.

Intent ional I nfliction of Em otional

Distress To rec over damag es for intentional inf liction of emotional distress, a plaintiff must establish that: (1) the de fenda nt acted intentionally

or re cklessly ; (2) the de fenda nt’s conduct was
extreme and outrag eous; (3) the defe ndant’s actions cause d the plaintiff emotional distress; and (4) the resulting emotional distress was sever e. Kroger Tex. Ltd. P’ship v. Suberu , 216 S.W .3d 788, 796 (Tex. 2006); Ho

ffmann-La Roche Inc. v. Zeltwanger , 144 S.W .3d 438, 445 (Tex. 2004). Patterson’s claim for intentional infliction of emotional distress appea rs to be based on the series of
text messag es Camp sent to Patterson individually and to Patterson and Dawn in g roup text s. Camp 7 and Revival argue that Patterson failed to establish by clea r and specific evidenc e a prima fac ie case that she suffe red se vere emotional distress. On this recor d, we a g ree .

Although Patter son did not state in her petit ion which communications formed the basis 7 of her claim for intentional infliction of emotional distress, in her response to Camp’s and Revival’s motion to di smiss, P atterson spe cified tha t this claim is based on the text messag es. 21Emotional distress includes embar rassment, frig ht, horror , g rief, shame, humiliation,
worry , and sever e emotional distress that is distress that is so sever e no rea sonable person could be expected to endure it. GTE Sw., Inc. v. Bruce , 998 S.W .2 d 6 0 5 , 6 1 8 (T ex . 1999). Mere worry , anxiety , vexat i o n , embar rassment, or ang er are not enoug h, and there must be a high deg ree of mental pain and distress, but evidenc e of a phy sical manifestation is not require d. P a r kw ay Co.

v. W oodruff , 901 S.W .2d 434, 443–44 (Tex. 1995); Long Canyon Phase II & III Homeowne rs Ass’n, Inc. v. Cashion , 517 S.W .3d 212, 223 (Tex. App.—Austin 2017, no pet.). I n her petition, Patterson stated only that the “emotional distress” she suffe red “wa s sever e.” I n her aff idavit, she stated that

a s a r esult of Camp’s conduct, she suffe red “tre mendous emotional distress, including but not limit ed to, loss of sleep, loss of appetite, depre ssion and anxiety ” and that Camp’s conduct “ter rified her so [t hat she] reporte d it to the police,” ec hoing vir tually identical stateme nts in her re sponse. We conclude that this evidenc e does not constitute clea r and specific evi d en ce of

sever e emotional distress. I n contra st to Patterson’s testimony here , in Bruce , the plaintiffs testified that, as a result of the defe ndant’s actions, they had “experienc ed a var iety of emotional problems, i n cluding cry

ing spells, emotional outbursts, nausea , stomach disorders, heada ches, difficulty i n sleeping and eating , stress, anxiety , and depre ssion,” that they had “experienc ed anxiety and fea r,” that they had “soug ht medical treat m en t fo r these problems,” and that they “we re presc ribed medication to alleviate the problems.” See 998 S.W .2d at 618–19. I n addition, an expert witness testified that the plaintiffs eac h suffe red from post-traumatic stress disorder. S ee id. at 619. The Texas Supreme Court conclude d that this evidenc e was leg ally sufficie nt to show emotional distress. S ee id. ; see also Lipsky , 460 S.W .3d at 593 (conc luding that aff idavit failed to sati s fy T C P A’ s

22requirement of clea r and specific evidenc e beca use it was conclusory and “devoid of any specific fac ts”); Long Canyon , 517 S.W .3d at 223 (conc luding that for purposes of TCPA motion to dismiss ,
asser tions that plaintiffs suffe red stress and sever e emotion distress and wer e annoy ed and alar med by defe ndant’s conduct wer e “not clea r and specific evidenc e of emotional distress that approa ched the sever ity descr ibed in Bruce ”); Deav er v. Desai , 483 S.W .3d 668, 677 (Tex. App.—Ho u s to n [14t h Dist.] 2015, no pet.) (conc luding that “a single alleg ation that they endure d ‘shame, embar rassment, humiliation, and mental ang uish” did “not qualify as clea r and specific ev i d en ce [ under TCPA] beca use [pl aintiffs] did not establish expli citly or w it h p a r ti c u la r it y how they suffe red their emotional distress”). Other than stating that she repor ted Camp’s conduct to the police, Patterson offe red

no evidenc e of the sever ity of her emotional distress—the deg ree of her loss of sleep, depre ssion, or anxiety —or any evidenc e that she soug ht pro fe ssional help, and she did not establish with any particula rity how she suffe red emotional distress or demonstrate how the distress rose to a level that

a rea sonable person could not be expected to endure

. See Deav er , 483 S.W .3d at 677; Regan v. Lee , 879 S.W .2d 133, 136 (Tex. App.—Houston [14t h Dist.] 1994, no writ) (holding that testimony that

as result of defen d ant’s conduct, plaintiff was “‘ve ry ang ry ,’ humiliated, and suffe red from depre ssion [but ] did not seek profe ssional help” was leg ally insufficient to support finding of sever e emotional distress); cf. Morgan v. Anthony , 27 S.W .3d 928, 931 (Tex. 2000) (per curiam) (finding

more than scintilla of evidenc e of sever e emotional distress wher e plaintiff testified that defe ndant’s actions cause d g reat fea

r and distress; that she had soug ht trea tment from psy chiatrist, psy cholog ist,
reg ular phy sician, and phy sician’s assistant; and that she suffe red from depre ssion, had problems

23with her family , had nightmar es, and was afr aid when she left home); Bruce , 998 S.W .2d at 618–19

(holding that evidenc e of varie ty of emotional problems; treatment for problems, including
presc riptions; and diag nosis of post-traumatic stress dis o rd er wa s leg ally sufficie nt to show emotional distres s ); L ambert v. Lambert No. 05-08-00397- CV, 2009 Tex. App. L EXI S 4007, at *10–11 (Tex. App.—Dallas May 29, 2009, no pet.) (mem. op.) (conc luding that plaintiff’s testimony that as result of defe n d an t ’s co nduct she suffe red from weig ht g ain, hair loss, TMJ cause d by
g rinding teeth, dama g e to g ums, loss of sl eep, nightmar es, fatigue , and depr ession; psy cholog ist’s
tes t i mony that he diag nosed plaintiff with “ac ute stress” and that she was traumatized; and phy sician ’s testimony that plaintiff suffe red from depre ssion and “stress anxiety sy ndrome with phy sical manifestations” wer e leg ally sufficie nt evidenc e of sever e emotional distress). We sustain Camp’s and Revival’s fo u rt h issue as to Patterson’s claim for intentional infliction of emotional distress. To summarize our disposition of Camp’s and Revival’s fourth issue, we ove rrule it as to Patterson’s def

amation claim and sustain it in all other re spects.

Cam p’s and Revival’s De fenses Having conclude d that Patterson was entitled to a presumption of falsity in her claim for defa mation and having overr

uled Camp’s and Revival’s fourth issue as to that claim, we turn to Camp’s and Revival’s third issue, in w hich they argue that they established by

a preponde ranc e of the evidenc e eac h essential element of a valid defe nse to Patterson’s claims. See Tex. C i v. Prac. & Rem. Code § 27.005(d) (providing that even if nonmovant establishes prima fac ie case , trial court shall dismiss leg al action “if the moving party establishes by a preponde ranc e of the evidenc e eac h essential element of a valid defe nse to the nonmovant’s claims”). Be cause we have conclude d that
24Patterson failed to establish a prima fac ie case of all of her cause s of ac t i on except defa mation,

we n ee d re ach Camp’s and Revival’s arguments reg arding their defe nses only as to the defa mation claim.

Truth is a defe nse to a claim for defa mation. Id. § 73.005(a) ; Neely v. W i l s o n , 418 S.W .3d 52, 62 (Tex. 2013); Randall’s Food Mkts. v. Johnson , 891 S.W .2d 640, 646 (Tex. 1995). The defe nse of truth require s defe ndants to prove that the statements wer e substantially true. Neely , 418 S.W .3d at 62. I n their answe r, Camp and Revival asser ted the defe nse of substantial tr uth but d i d n o t cite any fac ts or explain how the statements wer e substantially true. I n their mo t i o n t o d is mi s s , th e y stated that Camp “believe d” that Patterson had committed “alleg ed fra ud,” asser ted that Patterson had the burden to prove that Camp’s statements wer e false, and argued that the statements

wer e not actionable bec au s e t h ey wer e not made to a thi rd party , wer e opini on, or were rhetorica l hy perbole . On appe al, Camp and Revival a rg ue that Camp’s aff

idavit testimony , attache d to their
response , established by a preponde ranc e of the evidenc e that the email statements wer e true. Camp testified, re levant to his and Revival’s de fense of truth:

I nformation was prog ressively discovere d which indicated a series of fra ud issues within Revival. I ntent was uncover ed to dislodge the business from its marke t share and customer base including blocking Revival’s acc ess to vendors so Plaintiff could start a competing business. I believe( d) Plaintiff was committing fr aud by cre ating fra udulent invoices, incorre ctly handling money , conspiring to interfe re with the business and misrepre senting fac ts to ve ndors in an attempt to de ny Revival acc ess to goods a

nd products to sell in the marke tplace.

Ba sed on the ev idence , we cannot ag ree that Camp and Revival have met their burden. Camp’s aff idavit is self-se rving and “conc lusory ,” i

. e. , l ac k i n g in fac tual support. The first sentenc e is a

25passive-ve rb statement that “someone ” discovere d information that “indicate d” fra ud and does not

even ref er to Patterson. The second sentenc e is likewise a passive-ve rb statement that does no more than sug g est that “someone ” believed Patterson “intended” to block Revival’s acc ess to vendors and
start a competing business. The last sentenc e, like t h e ci t ed s en tence in the motion to dismiss , is simply a stateme nt of Camp’s belief that Patterson committed fra udulent acts. Camp and Re vival offe red no details of the “information” that was discovere d, of the evidenc e of Patterson’s eff orts to block Revival’s acc ess to vendors, or of the alleg ed fra udulent invoices. Nor did the y offe r any of
t he alleg ed fra

udulent invoices into evidenc e. They did not explain how Patterson incorrec t l y handled money , conspired to interfere wi t h the business, and misrepre sented fac ts to vendors. I n short, Camp’s aff

idavit statements wer e lacking in fac tual s upport and cannot constitute a preponde ranc e of the evidenc e. See Serafine I , 466 S.W .3d at 358 (stating that conclusory

s t at em ents are not probative) ; City of San Antonio v. Pollock , 284 S.W .3d 809, 818 (Tex. 2009 ) (holding conclusory , basele ss testimony to be n o ev i d en ce ). We conclude that Camp’s aff idavit failed to establish by a preponde ranc e of the evi d ence that the email statements that Patterson committed fra

ud wer e true and that Camp and Revival therefo re failed to meet their burden to establish a valid defe nse t o Patterson’s defamation claim. We overrule Camp and Revival’s third issue as to Patterson’s defa mation claim and, as stated above, do not rea ch the rema inder of the issue.

Rem and for Determi

nation of Award un der Section 27.009 I n their fifth issue, Camp and Revival reque st that if we reve rse the trial court’s order , we remand thi s case to the t rial court for a deter mination of attorney ’s fees under the TC PA. The TCPA provides that if the trial court order s dismiss al of a leg al action, it “shall awa rd to the moving
26party

. . . court costs, attorne y ’s fe es , an d expenses as justice and equity may require .” Tex. Civ.

Prac. & Rem. Code § 27.009(a)

. The Texas Supreme has deter mined that upon dismiss al under the TCPA, an awa

rd of attorney ’s fee s to the succe ssful movant is mandatory

. See Sullivan v. Abraham , 488 S.W .3d 294 , 299 (Tex. 2016) (holding that TCPA require s that “re asonable attorney ’s fee s” be awa rded to succe ssful movant and t h at t er m “a s justice and equity may require ” in section 27.009(a )(1) applies only to awa rd of “other expenses”). Section 27.009 simil arly require s an aw ar d o f sanctions ag ainst the nonmovant “suff icient to deter the party who broug ht the leg al ac tion from bring ing similar a ctions descr ibed in [C hapter 27].” Tex. Civ. Prac. & Rem. Code § 27.009(a) (2); see Serafine v. Blunt ( Serafine II

), ___ S.W .3d ___, No. 0 3 -1 6 -0 0 1 3 1 -CV, 2017 Tex. App. L EXI S 4606, at *22–23 (Tex. A pp.—Austin Ma

y 19, 2017, no pet. h.) (obser ving that Act’s “plain lang uage p resumes that some sanctions awa rd—i.e., an amount g reater than zero—is require d”).

Ba sed on our resolution of Camp’s and Revival’s issues, we aff irm the trial court’s denial of the motion to dismiss as to Patterson’s defa mation claim and reve rse and rende r judgme nt dismiss ing the rema inder of Patterson’s claims. Acc ording ly , we rema nd this case to the trial court
to deter mine the rea sonable attorney ’s fee s and sanctions under section 27.009. See Rosenthal , 2017 Tex. L EXI S 296, at *28–29 (re jecting argument that movant was not entitled to attorney ’s fee s wher e trial court g rante d motion to dismiss as to one of nonmovant’s claims but not other, holding that movant was entitled to awa rd of rea sonable fee s, but expressing no opinion on how continuation of rema ining claim aff

ecte d proper amount of fee , “l ea v i n g t h at to the trial court’s discretion on

rema nd”); Cavin , 2017 Tex. App. L EXI S 6511, at *47 (af firming trial court’s denial of motion to

27dismiss as to one claim, reve rsing and dismiss ing as to rema inder of claims, and rema nding to trial
court “to deter

mine the attorney ’s fee s and sanctions that must be awa rded incident to such dismiss al under the TCPA”); Serafine II , 2017 Tex. App. L EXI S 4606, at *21–22, 24 (obser ving that Texas Supreme Court has n o t s p e c if ic a ll y a d d resse d issue of whether sanctions under TCPA are mandatory , but “in Sullivan it noted without dis approva l the appellate court’s determination t he TCP A ‘made

an awa rd of sanctions mandatory ,’ ‘temper ed by ’ the amount the trial court deter mines sufficie nt to deter simil ar actions” and rema nding to trial court for deter mination of reasonable attorn ey ’s fees and amount of sanctions to be awa rded under section 27.009 (citation omitted)); Tervita, LLC

v. Sutterfield , 482 S.W .3d 280, 286 (Tex. App.—Dallas 2015, pet. denied) (re manding for d etermination of awa

rd under section 27.009 wher e trial court’s order on motion to dismiss wa s aff irmed in part and reve rsed in part); Serafine I , 466 S.W .3d at 364 (holding that TCPA motion to dismiss should have been g rante d in part an d re v ersed in part and rema nding cause for further
proce eding s, including de termination of aw ard unde r § 27.009).

CONCLUSION We aff i rm t he trial court’s order denying the motion to dismiss as to Patterson’s defa mation claim. As to her other claims, we reve rse the t rial court’s order and rende r judgme nt dism i s s ing the claims. We rema nd to the trial court for further proce eding s consistent with this opinion, including consideration of Patterson’s defa mation claim and deter

mi n a ti o n o f the attorney ’s fee s and sanctions that must be awa rded under section 27.009 incident to dismiss al of the rema inder of Patterson’s c laims.

28_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Pemberton, and G oodwin Affir med in Part; Reverse d and Rende red in Part; Reve rsed a nd Remanded in Part Filed: Aug ust 3, 2017

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