R eversed and Remanded and Opinion filed March 11 , 202 1

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00178

- CV

UNITED LOCATING SERVICES, LLC , Appellant
V. DAMON FOBBS, RODNEY JOHNSON, & CARLOS HARRELL , Appellee s

On A pp eal from the 2 3 4th Distric t C o urt

Harris County, Texas Trial Court Cause No. 2018

- 71384

O P I N I O N 1 Appellant Unit ed Locating Services of Texas, LLC brings this interlocutory appeal from the trial court ’ s denial of a motion to dismiss brought und er the Texas Citizens Pa r ticipati on Act (“ TCPA ”). 2 Appellees Damon Fobbs, Rodney Johnson,

1 Justice Bourliot dissents with out opi nion.

2 This case is controlled by a prior version of the TCP A. The TCP A was sub stantiall y amended by the Act of May 20, 2019, 86 th Leg ., R.S., H.B. 9 8 , which modified Texas Civi l Practice & Remed ies sections 27.001 (2), (6) and (7); 27.003(a)

- (b), (d)

- (e) ; 27.005(a)

- (b), ( d); 27.006; 27.007; 27.0075; 27 .009; and 27 .010

. We cite to th e Texas G e neral Laws when we are citing to2

and Carlos Harrell , three former United employees , assert claims for defa ma tion and invasion of privacy by appropriation of name or lik en ess base d on allegations that United continue d to use their n a m es on certain documents after they separated from United. Concluding that their claims fall within the TCPA ’ s broad scope and tha t each plaintiff failed to establish by clear and spe cific ev idence a prima facie case for each essential element of either o f these claim s , we reverse and remand

.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND
United locates and ident ifies underground utility lines and pipework for customers who plan to bu ild, dig , o r othe rwise move eart h

. United assists

c u stom ers by appropriately m ark in g areas of underground utilit ies so that th e
customer can avoid them. United employed Fobbs, Jo hnson, and Harrell ( collec tively , “ Former Employee s ” ) as “ l ocator s

. ” A locator ’ s job is t o identify and mark utilities at constructi on sites

. Accordi ng to the p arties, in the usual course of business a customer calls 8

- 1

- 1 , which is t he “ C all

- be fore

- you
- dig ” hotline , a nd the 8

- 1

- 1 call center generates

a “ Locate Request Ticket ” for the cust omer

. T he custo mer then forw ards the
Locate Request Ticket to Un i te d a nd U nited , in turn, assigns the ticket to a locator. United puts the l ocator ’ s name on the Locate Re quest Ticket if i t is necess ary to send the employee into t he field to locate the ut il ities at issue

. If a utility line that belongs to a United cu s to mer i s damaged, a “ Damage
T racker ” is generated so that United ca n investigate the damage and determine the

caus e

. A Dama ge Tracker contains the name of the emplo yee ass igned to investiga te the da mage to th e underground utility lines and pipework . Som e D ama ge Trackers also contain utility

- m arking information found on a Locate

a former version of a provision of Chapter 27 of the T exas Civil Practic e and Remedi es Code.3

Request Ticket gener ated for t he area , such as the t icket number and name of the l ocator previously tasked wi th lo cating and marking the underground utility lines and pipework in t he ar ea

. Unit ed uses Locate Request Tickets and Damage Trackers to c ommuni cate with various personnel an d su pervisors within United in the regular course of business , and United share s both with U nited customers who reque st th e utility locating service or re por

t damage to a utility line.
The For mer Emplo

yees ’ Claims The Former Employe es sued United asserting clai ms for defa ma tion and invasion of privacy by appropriation of name or like n ess ( the “ Name Appropri ation Claims ” )

. The Forme r Employe es alleg e th a t at s om e point after they stoppe d working for United , United pla c ed their name s o n various “ work orders ” ( Locate Re quest Tickets ) and “ damage tickets ” ( “ Damage Trackers ” )

. The Former Empl oyees premised their Name Appropriation C laims on allegat ions tha t U nite d “ appr opriated [their] name s for [United ’ s own use] on work orde r tickets for [ Center Po int Energy ] and other custom ers contr actin g for utility locating service s

. ” In t he ir p etition t he Former Employees al lege that United received a benefi t by clos i ng out a nd charging damage tickets to the Former Employees

. They allege United did not have to pay their employe e s for the work that the Former Employees allege dly performed

. The Former Empl oyees premised their def amation claims on allegat ions that United ma de f

al se written statements concerning “ damage tickets

. ” The Former Employees allege that United “ fa lsely stated that [ t he F ormer Emp loyees ] were completing and closing out jobs and were c ausing damages becau se the locating was done incorrectly

. ” The Fo r me r E m pl oyees further allege that United made these statements “ to receive compensation from customers with out having t o4

compensate [ the Former Employees ] or employees who actu ally performed the

w ork

. ”
The Former Employees se ek act ual damages, unspecified “ s peci al or conseque ntial damages,” and exemplary damag es

. United ’ s Motion to Dismis s United filed a motion to d ismis s und er the TCPA , ask ing the tri al court to dismiss all claims , impose sa nctions, and award attorney ’ s fees

. United asserted that each o f t he F or

m er Employees ’ claim s were based on , relate d to , or mad e in

re sponse to United ’ s “ exerc is e of its rights to speak or associate freely

. ”
United asserted th at the claims fell under th e TCPA ’ s scope a s rel a ted to or based on the “ e xercise of the ri g h t of fr e e speech ” because , ac cording to United ,

“ t he speech at the heart of [the Former Employees ’ ] lawsu it ” was “ c ommunication concerning the par ties responsible for properly identifyin g and loca t ing potentially hazardous utility lines

. ” United arg u e d the spe ec h implicated “ issues of pub lic

concern t hat include health or s afety , environmental or commun ity well

- being , and

a service in the marketpl ace

. ”
United further asserted that the claims fel l under the TCPA ’ s scope a s related to or based on the “ exercise o f th e rig ht of association ” because internal

co mmunications with company person nel as well as external communications w ith
customers were made in pursuit of the common in t erest of “ complet ing needed utility location services and , in some instances , det e r m in ing the ca use of damage to those utility lines and relate d p r operty damage

. ”
In its motion United also set out the ele ments of the Former Employee s ’ defamation claims a nd Name A ppropriat io n Claims , chal lenging the Former Employee s ’ ability to establish b y cle a r an d spe cific evidence a prima facie case5

for eac h essential element o f the claims.

The Form er Employees ’ Response to Unite d ’ s Moti on The Former Employees contended in the trial cour t and arg ue in th is interlocutory appeal that the TCPA d oes not a p p l y t o the ir claims. They allege United “fabricated” the Loc ate Request Tickets and Damage Trackers . According to the Former Employees, the fab rication r endered the se i tems incapa ble of bein g “created to prevent future damages an d risk to the pu b lic” or o f “ add r ess [ in g] public concerns ” bec ause the fa bricated items provided no public benefit. The Former Employee s also attempt ed to establish by clear and spe cific evidence a prima facie case for eac h essential e lement of their claims. Ea ch of the Former
E mpl o yee s pro vi ded a short affidavit with attached documents

. The T rial C ou rt ’ s I nterl ocutory O rder D enying United ’ s Motion
At the hear ing on U nited ’ s m otion , t he truth of the statements cont aine d in the tic kets and tr a ckers was ce ntral to discussions a b out t he a ppli ca bility of the TCPA and whether the Former Employe e s establish ed by clear and spe cific evidence a prima facie case for eac h essential element of the claims. After taking the matte r under advisement and allowing United time to file an af fidav i t pr o vin g its a ttorney ’ s fees , the trial court denied United ’ s motion t o dismiss

. Two d ays later , United fi l ed its request for findings of fact an d conclusions of law

. T he trial
court issued fi ndings , t h at (1) “[ t he Former Employees] did not bring their l e gal

a cti o n to d eter or prevent [Unite d] from exercisin g constitutional rig h ts , ” and (2)

“ [Former Employees] did not bring t heir legal action for an improper purpose, including to hara ss or to cause unn e cessary delay or to increase the cost of litigation. ” Un it e d t

h en b ro ught this appeal.6 I I. I SSUES AND A NA LYSIS
Under it s fi rs t issue , United argues that the tri al court erred in denying its motion to dismiss because (1) it satisfied it s initi al burden t o show that the TCPA applied to the Former Employees ’ c la i m s , and ( 2) the Former Employe es failed to establish by clear and spe cific evidence a p rima facie case for eac h essential element of the claims. Also under its first issue , United challeng es t he tr ial court ’ s two findings . In its second issue, Unit e d ar g u e s that the trial court reversibly erred in denying United ’ s request for cou rt costs, reasonable attorney ’ s fees, expense s, and sanctions under former section 2 7.009(a) , Act of May 2 1, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 9 6 2

- 63 ( am en ded 2 019) (current version at Tex. Civ. Prac. & Rem. Code Ann . § 27.009(a) )

. Under the version of the TCPA we apply today , t he party filing a mo ti on to dismiss shoulders the burden to “ show [] by a preponderance of the evidence ” that the claims in ques t i o n are “ based on, relate [] to, or are in response to ” the party ’ s exercis e of the right of free speech, the right to petition, or the r i gh t of ass ociation. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (am ended 2019) (c u r r en t v e r sion at Tex. Civ. Prac. & Rem. Code Ann. § 27.005( b) (replacing “ shows by a pr eponderance of the evidence ” with

“ demonstrates" , and removing “ relate s to ” ) )

. If the movant satisfies this burden, the trial court must dismiss the laws ui t unless the p a r t y ass e r ting the claim establishes by “ clear and spe cific evidence a prima facie case for each es sential element of t he claim in question. ” Tex. Civ. Prac. & Rem. Code Ann

. § 27

. 0 05 (c)

. A “prima facie case” refers to evidence sufficient a s a matter of l a w t o e s t ablish a given f

act if it is not rebutted or contradicted. See In re Lipsky , 460 S.W.3d 579, 590 (Tex. 20 1 5). A prima facie case reflects the minimum quantum of evidence necessary to support a rational inference that t he a llegation of fact is tr u e

. Id

. The phrase “clea r7

and specific” describes the “clarity and detail required to avoid dismissal” and does

no t impose a b urden of proof higher tha n the burden required at trial. Id . at 590

– 91.
Even if the claimant meets this burden, the court sti l l mu st d i smiss the lawsuit if the movant est ablishes by a pr eponderance of the evidence each esse ntial el e ment of a val id defen se to the claim. Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, § 2, 2013 Tex. Gen. Laws 2501, 2501 (amended 201 9) (current ve r s i on at T ex. Civ. Prac. & Rem. Code Ann. § 27.005(d))

. In determining whether to g rant or deny a motion to dismiss, the trial court shall consider the pleadings and supporting and o pposing affidavi ts stating the facts on which the lia bilit y or defense is b a se d. A c t of May 21, 20 11, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a))

. A. Does the TCPA apply to the Former Employees’ defamation cl aims and Name Appropria t i o n C la i m s ? We first consider Uni te d ’ s argument t hat it showed the TCPA applies to the
F orme r Employ ee s ’ defamation c laims and Name Appropriation C laims. To satisfy its bur den , United had to show by a preponderance of the evid en ce that each of the se claim s i s “ba s e d on, relates to, or is in response to” United ’ s exercise of the right of free speech or the righ t of ass ocia tion. S ee Lipsky , 460 S.W.3d at 58 6

. We

r ev ie w de novo th e trial court ’ s determination of whet he r United satisfied th is bu rden

. See D eave r v

. De sa i , 483 S.W.3d 668, 672 (T ex. App.

– Houston [14th Dist.] 2015, n o pet.).
Under the TC PA , a com munication made i n con nection with a matter of public con ce rn cons ti tutes an exercise of the right of free speech. Tex. Civ. Prac. &
Rem. Code § 27.001(3 ) ; Fo rd v

. Bland , No. 14

- 15

- 00828

- CV, 2016 WL 732330 9,8

at *2 (Tex. App.

—

Houston [14th Dist.] D ec. 15 , 2 016, no pet.) (me m. op.). A “communication” includes “the m ak ing o r submitting of a statement or document in any form or medium, i ncluding oral, visual, w ri tt en , a udiovisual, or electronic.” Tex. Ci v. Prac . & Rem. Code § 27.001(1). Although the s tatute ha s changed,

un der the version of the T PCA applic ab le to today ’ s case , a “ matter of pub li c

concern ” is defined to in clude an issue related t o “ health or sa f et y , ”

“ e n vironmental , economic , or community wellbeing , ” a nd “ a service in the marke tp lace. ” Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 960, 961 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann . § 27.001(7))

. B o t h t he de famation claims an d t he Name Appropriation C laims are based

o n allegations that after each of the Form er Emp loyees stopped working for Uni ted , United placed of the name of each of them on certai n doc uments

— Locate Requ est Ticket s and Damage Tr a ck er s

. I n th e context of the Name Appropriat ion Claims, the Former Employees complain about Unite d ’ s statements that the y located and identified underground utility lin es for United ’ s custome rs when the
F ormer E m

pl oyees were not working fo r United

. In t h e co nt ex t of the defamation

c laims , t he Former Employ ees allege that United falsel y stated that the For mer E mployees were completing an d closing ou t jobs a n d that they were causing damages by incorre ctly doin g their work as locators.

I n th eir response to U n i t ed ’ s motion to dismiss , t he F ormer E mployees acknowledge that the Locate Request Tickets and Damage Trac kers are used “ so that the utilities woul d not be damaged during construction

. ” The alleg ed
statements on w hich the Former Employee s base their cl a i m s ar e c ommunications withi n the meaning of th e TCPA . Th ese communications address the F ormer E mplo ye es ’ work of lo cating and identifying und erground u tility lin es and making9

these u tility lines visible to those digging and improving prop erty above grou n d

. Th is work a ids the worke rs, construction co mpanies, uti li t y compan ies, landowners, and those nearby to a void pote ntial environmen tal, healt h, safet y, and economic risks associated with digging underground. These alleged communications w ere made in con n ec ti on w i th an issue related to “ health or safety , ” “ environmental , economic , or community wellbeing , ” and “ a servic e in the marketp lace. ” See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 960, 961 (amended 2019) ( current version at T ex

. C iv. Prac. & Rem. Co de Ann. § 27.001(7))

. Therefore, the alle ged com munication s we re made in

con nection with a matter of public concern , and they cons ti tute an exercise of the right of free speech. See id

. United carrie d its bu rd en to show by a pr ep on de r ance of t he evidence that the Form er Employee s ’ d efamation claims and Name Appropriation Claims are based on, relate to, or are in response to Unit ed ’ s exercis e of the right of free speech

. See id

. ; s ee also Act of May 21, 2011, 82 nd Leg., R.S., c h. 3 41 , § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)) ; ExxonM ob il Pipeline Co. v. Colem an , 512 S.W.3d 895, 901 ( Tex. 2017) ( concluding under version of the TCPA applica

bl e to today ’ s ca s e th at c o mm unications concernin g employee ’ s alleged failure to gauge tank 7840, related to a “matter of public concer n” b eca us e the t ank

- gaugin g process was one completed at least in part, to reduce the potential environmental, health, safe ty, and ec onomi c r is ks a s so ciated with noxious an d flammable chemicals overfilling and spilling ont o the ground ) ; Cunningh am v

. W aymire , 14

- 17

- 00883

- CV, 2019 WL 5382597, at *8 (Tex. App.

— Houston [14th Dis t.] Oct. 22, 2019, no pet.) ( concluding under versio n of the TCPA a p pl ic a b le to today ’ s case that “ [p] r ivate communicatio ns on “matters of public concern” are

covere d by the T CP A ” )

. A s it did in th e trial court, United relies upon the Coleman case as supp ort for it s co ntention that comparable claims have b een found10

to fa l l un de r t he scope of the T CPA. We agree that C oleman is instructive. In Coleman , the Su pr eme Court of Texas he ld that a Near Lo ss Report and an Inventory Planning Sheet , which we find analogous to the alleged Locate Re quest Tickets and Damage Trackers a t i ss ue , c onstit u ted “c ommun ications” under the TCPA. See Coleman , 512 S.W.3d at 901.
Alth ou gh th ey present it in se veral ways, the Former Employee s ’ only
scope
- argument is that t he TCPA does not apply to false statements

. They argue th at the ir claims canno t fa ll w i thin t h e scop e of the TCPA becau se , as they contend, the statements at the center of the allegations were false i n that the employee s , as former em ployees , could not have performe d the locat ing services as described on the dates in dicated

. Sp ec if ic al ly, t he F or m er E mp loye es argue that :
1. T he Coleman case is factually disti nguishable because the F ormer E mployees (unlike Coleman ) were not emplo ye d by the company when the company made the statement s, a nd the statements we re therefore false

. 2. U nder sec ti on 10 3

. 00 1 of the Te xas Labor Code th e TCPA “ only affor ds a q ualified privilege to employers who disclose information about employees which they believe to be rea so nably true , ” and that United faile d to demonstrate that the qualified privilege applied. 3. F al s e sta t ements regard ing private individuals are not protected speech, even if such fals e stat e m ents are matters o f public concern

. This argument is not convincing

. First, t he Coleman court d id not base its holding on the status of Coleman ’ s e mployment w it h Exxo n Mobil ; rather , th e
court f ound that Colema n ’ s claims fell within t he scope of the TCPA ’ s free

- speech
prong based on the subject matter of the alleged communications involved. See C oleman , 512 S.W.3d at 901

. Thus, the F ormer E mployees undertake t o d i sti n g uish t h e case on a f a ct no t material to the holding in Col e man

. Second , whether United asserted and proved a qualif ied privilege under t he Texas Labor Co de or any oth er law is irrelevant to whether the Former Employee s ’ cla ims fall11

within the sco pe o f th e TCPA. What Un ited may choose to asser t as a n affirmative defense to the F ormer E mployee ’ s claims does not form part of the calculus of whether those claims fall within the T CP A ’ s scope

. T he Former Employees cite the Castleman opinion from the S ev en th C o urt of Appea ls f or the propo sition that f als e statem e n ts regarding private individuals are not protected speech, even if such fals e statements are matters o f public concern

. In Cast l e man , the court of appeals concluded that the TC PA applied to t h e de fa ma t ion cl ai ms i n t hat case. See C astleman v. Internet M

o n ey Ltd. , 07

- 16

- 00 320

- CV, 2018 WL 5093857 , at * 2

– 3 (Tex. Ap p.

—

Amarillo Oct. 18, 2 018, pet. denied) . The court of appeals then conclud ed that the plaintiffs had establish by clear and spe cific e vi de nce a prima facie ca se for each essential element of eith e r of these claim s

. S ee id . at * 3

– 6. The Cas tlem an court concluded that the TCPA appl ied to the defamation claims before it, and nothing in the Castleman opinion shows that th e TCPA does not a p pl y to
t h e Form er Emp loy ees ’ claims. S ee id . at * 2

– 6.

Because Un ited carrie d its burden to show by a preponderance of the evidence that the Form er Employee s ’ claims are based on, relate to, or are in response to Unit ed ’ s exercis e of the right of free sp e e c h , the trial court err ed to the extent that it concluded that United failed to make that sho wing

. Thus, we need

n o t and d o not address whether United carrie d its burden to show b y a preponderance of the e vidence that the Form er Employee s ’ claims are ba s ed o n,

r e late t o, or are in response to Unit ed ’ s exercis e of the right of associat ion

. B. Did the trial court abuse its discretion i n it s implicit ruling that the Former Employees satisfied t heir bu rden of estab lishing each of the essential elements of t he ir cla i ms by clear and specific evidence? We next cons ider whether the trial court erred in its implied find in g that t he Former Empl o y ee s satisfied th eir burden to establish each of the essen ti al elements of their c laim s by clear and specific evidence

.12

1

. Na me A p propri ati o n C la ims The three elements of a claim for invasion of privacy by appropriation of name or like n ess ar e (1) the defendant appropriated the plai nt iff ’ s name or likeness for the value associa t e d with it, and not in an incidental manner or fo r a

ne w sworth y pu rp ose ; (2) the plaintiff can be identified from the publication; and (3) there was som e adva ntage or b en efit to the defendant. Watson v. Talia He ights, LLC , 566 S.W.3d 326, 329

– 30 (Tex. App

. — Houston [14th Dist.] 2018, no pet.) ; Express O ne I

nt ’ l
, Inc. v. Ste inb eck , 53 S.W.3d 895, 900 (Tex. App.

— Dallas 2001,

no pet.)

. Under Texa s law courts appl y a ve ry restr ictive interpr etation of th is to rt

. Watson , 566 S.W.3d at 329

– 30

. Texas law does not protect a name per se , bu t the value asso ci a t ed w it h i t. Id . at 3 30

. For U n ited to be liable un der one of the Name Appropriatio n Clai ms , U nited mu st have appropriated to its own use or benef it the reputation, prest i g e, social or commercial standin g, public interest or o the r value s of the plaintiff ’ s n am e. I d

. An approp ri atio n generally becomes a c tionable when the plaintiff

’ s name is used to adve rtise th e defen dant ’ s business or product, or for

s ome similar commercial purpose. Id

. In resp onse to the motion to di smi s s, Johnson submitted an affidavi t in

w hich he te s tifie d that his employment with United terminated in January 2018 and that an attached Damage Tracker state s that on March 22, 201 8 , John son failed to mark a stree tl i ght cable on a street in Houston , Te xas

. J ohnson stated that to his know l e dg e , thi s Dama g e Tra ck er issued in J ohnson ’ s na me is fa lse because John son was no lo nger employed with Un it ed on that date . Fo bb s testified that he resigned his position at United on March 29, 2017, and that an attac h ed Request Ticket states that F obbs ma r k ed a l o catio n in S taf

ford , Texas on August 4, 2017. Fobb s stated that to his knowl edge , this Request Ticket i s fa lse because Fobbs w as no lo nger employed with Un it ed on August 4, 2017. Harre ll testified that he wa s terminated from his position at Uni te d i n Oct o ber 2 0 17, a nd that two attached13

Request Ticket s state that Harrell mar ked location s in Houston , Texas and
Pe arland , Texas at 9:29 a.m. on November 8 , 201 7. Harrell stated that to his knowl edge , th ese Request Ticket s are fa lse because Harrell w a s no l o nge r empl o yed w ith Un it ed on November 8 , 2017 , and it was impo ssible for him to be marking lo cations in Pearland and Houston at the exact same ti me. T he Former Employ ee s did not addre ss the elements of their N ame A ppropriat ion C laim s in their respo n s e to the motio n to d ism iss

. On appeal, they contend that “ the parties presented proper evidence that [United] received monies based on [the F ormer Employe es ’ ] names and reputa tion

. ” The F ormer E mploye es allege that Uni ted used the Former Employees ’ name s to g ener a te wo r k tic ket s and received payment on th e se complete tickets. But, n o evidence before the trial court show ed tha t U n ited appropr iated any o f their liken esses. Nor did an y of evidence show that any of their names had a value a ssociated with i t

. T he For m er Em p loyee s a ssert that United received monies based on the F ormer Employees ’ names and reputa tion s and that United received payment based on th e Locate T icket Requests in q uestion.
Yet , no ne of the evidence the Former E mpl oyees submitted show s th at an y Locat e T ick et Req

uest or Da mage Trac ker with any of t heir names on it was ever given to

an y client of Un it ed. Aaron Gibbs, the General Ma nager of United testifi ed in an affidavit attac hed to the mot ion to dismiss that “ Locate Request Tickets an d
Da ma ge T r acker s are use d by and co mmunicated to various person nel and supervisors within United in the re g ular course of business. ” Gibbs a lso stated that

“ [t]hese documents also may be shared

— and in fact have been shared

— with the United customer w h o re qu este d the u tili ty locating serv ice or reported the damage at issue in the specific Locate Request Ticket or Damage Tracker. ” Though Gibbs stated that the se documents ma y be shared and that some of the document have been shared with the United custom er, G ib bs d i d no t test ify that any specific documents, including the documents mentioned in the Fo rmer Emplo yees ’14

aff idavits, had been shared with a United customer. N o ne of the evidence United submitted shows that an y Locate T icket Req uest or Da mage Trac ker c on tain i ng t he

nam e o f one of the Former Employees was e ver given to an y client of Un it ed. T he
recent court of appeals opinions that address invasion of privacy by appropriation of name or liken ess show that the Former Employee s did not establi s h by cl ea r a nd
spe c ific e vide nce a prima facie case for this claim

. In Watson v. Talia Heights
, LL C , we r eviewed a trial court’s no
- evidence summary judgment dismiss ing a name appr opriation c laim in a case in wh ich the plain tiff (Watson) argued that the defendant ’ s u se of h is na me in cer tain real e state tr ansactions allowed the defendant to benefit from the plaintiff ’ s relativ e anonymity in the real estate business thereby permitting the defendant to “underhan dedly ‘lock

- up’ valuable real estate p roperties for dev e lop men t.” 566 S. W.3d 32 6, 329

– 31 (Tex. App.

— Houston [14t h Dist.] 2018, no pet.)

. This court concluded that Watson faile d to sh ow that alleged misuse of Watson ’s name had “anything to do with [ his ] unique skills or reputation , ” and that the name was inter c han gea ble with an y ot her “anonymous” individual. Id

. Th e Watso n co urt determined that the plaintiff had failed to present any evi d ence raising a fact issu e as to wheth er the defendant appropriated the plaintiff ’ s name for the value associated with it

. S e e i d.

I n Ca rd iova sc u lar Provider Res. Inc. v. Gottlich , the plaintiff alle ged that the defendant appropriat ed the plaintiff ’ s name by in cluding it in an investor list

. See No. 05

- 13

- 01763

- CV, 20 15 WL 49 14725, at *3

– 4 (Tex. App.

— Dallas Aug. 18 , 2 0 15, pe t. denie d ) (m e m. op.)

. The court of appeals co n c lu ded that the evidence was legally insu fficient to suppo rt a name appropriation claim based on the defendant ’ s alleged benefit from the valu e associated with plaintiff ’ s name because p laintiff had t he un ique qu alif ic a tion s to be a listed investor in that he had

a lice nse to practic e medicine in Texas and privileges to perform cardiac and15

vascular surgery at Baylor Hospital

. See id

. The court of appeals c oncluded that for purposes of the inv est or li st no evidenc e sh ow e d that the pla intiff’s name had unique value , and that the plaint if f ’ s name cou ld have been replaced by anyone els e ’s name having the sa me criteria , and so any benefit defendant re ceived from the transaction could not be trace d bac k to v al ue ad ded b y the p laintiff ’ s name

. Id

. Like the plaintiffs in Watson and Gottlich , the Former Employees fall short in showing the value associated with their names. No evidence before the trial
court would supp o rt a f

inding that any of the Former Emplo yees ’ name s has a

v alue a ssociated with it . To the extent , that a n underground utility l ocator named

o n a locato r ticket must be q uali fi ed by some training, education, or experience, the
F orm er E mployees have failed to show what th ose qualifications ar e, much less

an y det a i ls about any of th e Former Employees that would g ive any oth er value to their nam es. Because n one of the For me r Empl oy ees establi sh ed by cl ear and specific evidence a prima facie cas e for the first essential element of the ir Nam e A ppropr iation C l a im s , the t rial court erred in denying the mo ti on to dismiss as to th e se claims

. See Watson , 566 S.W.3 d at 329

– 31 ; Gottl ich , 2 0 15 WL 49 14725, at *3

– 4

. 2. D efamation C laims In the Former Employees ’ defa ma ti on claims against United, the essen tial

e l ements incl ud e th e fo llowing: (1) the publication of a false statement of fact t o a third party , (2) that was defam at or y co ncerning t he p la intiff, and (3) the defendant either acted with act ual malice or negligen tly , depending o n the requisite d egree of fault

. See E

xxonMo b il Corp. v. Ri nc ones , 520 S.W.3d 57 2 , 5 79 (Tex. 2017); Fawcett v. Grosu , 498 S.W.3d 650, 66 1 (Tex . App.

— Houston [14 th D is t.] 20 16, pet. denied )

. In their petition t he Former Employee s alleged that “ [United] made16

de famatory st atements in wr iting

. ” T h ey a llege d that “ [Unit ed ] fals ely stated , that
t he Plaintiffs wer e comp let ing and closing o ut jobs and wer e causing dama ges becaus e the locating was done incorrectly , ” and that U n ited “ fa lsely charged damage tickets to the fo rmer e mployee

. ” In t heir re sponse , t hey only submitted evidence of a single all eged defamatory p u bl ic ati on as support for their cont ention that United was making statements that the loc ators were “ causing damages b ecause the locating was done incorrect ly , ” a Da mage Ticket nam ing Rod ney Jo h nson as the locator assigned to locat e under g round utilities a t a s ite where underground utilities had been struck

. Har rell an d Fobbs offered no evidence of any defamatory stateme nt all egedly made by United on any Dam age Track er

.

“ Publicat ion ” oc curs i f the defamatory statements are communicated orally, in writing, or in print to some third person w ho is “ capable of unde rstanding their defamatory import and in such a way th at the th ird person did so understand

. ” ExxonMobil Co rp. v. Ri nc ones , 520 S .W.3d 5 7 2 , 5 79 (Tex. 2017)

. As a general rule a defendant who communi cate s a defamatory statement direct ly to the defamed pers on, who then relays it to a third person, has not publ is hed the matter to the third person. See id

. N o ne o f the evidence the For mer E m p l oyees submitted shows that an y Locate T icket Req uest or Da mage Tra c ke r containing any of their na mes was ever given to an y Un it ed customer

. Aaron Gibbs, the General Ma n ag er of United testifi ed in an affidavit attac hed to the mot ion to dismi ss that “ Loca t e Request Tickets and Damage Trackers are used by and co mmunica ted to various personnel and superv isors within Unite d in the re g ular course of business. ” Gibbs a lso stat ed that “ [t]hese documents also may be shared

— and in fa ct have been sh ared

— with t h e United customer wh o requested the utili ty locating serv ice o r re por ted the damage at issue in t he specific Locate Requ est Ticket or Damage Tracker. ”17

Though Gibbs state d t hat the se documents ma y be shared and that some of the document have b een sha red wi t h the United customer, Gibbs did not testify that any specific doc ume nts, including the documents mentioned in the Fo rme r Emplo yees ’ aff

idavits, had been shared with a Un ited customer. N o ne of the evidence United submitted sho ws that an y Loc ate T ic ket Re q uest or Da mage Trac ker with any name o f one of the Former Empl oyee s o n it was ever given to

an y U nited customer

. J o h nso n testified in his affidavit that he had a ttac hed to th e affidavit “ a damage clai m # 16795 da ted March 22, 20 18 and it sta tes tha t I Ro d ney Jo hnson, f ailed to mark the streetli ght cable on Ashfor d Oa k D r. in Houston Te xas on Marc h 22, 2018. To my knowled ge this da mage claim ID #16759 issued in my na me is false because I was no longer employed with United Lo c ating Services on t his date. ” Even if we presum e that United communicated this Dama ge Tracke r to

va rious personnel and supervis ors within United in the r e g ular course of business , no evi dence before the tri al court shows that the statements regarding John son in this document we re com m unicated to a third person who was capable of understanding the def

ama tory import of one of these statements and in such a w ay that the th ird person understood the def amatory import of any of these statements

. See Ri nc ones , 52 0 S.W.3d at 5 79 . Th us, n one o f the Former Employees establi sh ed by cl ear and specific evide n ce a p rima facie cas e for the publ ication element of the ir de famation c l a ims , an d for this reas on , the t rial cou rt erred in denying the motion to dismiss as to th e defamation claims

. Se e id

. S howing that Defendant Acted with Actual M alic e or Negligently

T he Fo rmer Employee s allege d that U ni ted inte ntionall y placed their names

on Loca tor Req uest Tickets and Damage Trackers , but they prov ide d no evidence to support t he allegat ion. The For mer Em p loyee s presented no clear and specific18

evidence of actual mal i ce or negligence. No evidence befor e the trial court demonstra te d a prima facie showing that United made any statement concerning any of the Former Employees with k nowledge th at i t was fa lse or with reckless disregard of whether it was true

. Nor was there any ev idence demonstrat ing a prima facie showin g that United f ailed to investigate the truth or falsity of any
statement concerning the Former Employees or failed t o act as a reas onabl y p rudent actor

. N o evidence sh ows that United made any false statement of fac t concerning any of the Forme r Employe es with n egligent regard for the truth. Thus,

n one of the Former Employees establi sh ed by cl ear and specific evidence a prima fac ie ca s e th at United ac ted with actual malice or negligently , an d for this r eason , the t r ial court erred in denying th e motion to dismis s as to t h e defamation claims

. See Fawcett v. Grosu , 498 S.W.3d 650, 66 2, 663 (Tex. App.

— Houston [14th Dis t.] 20 16, pet. denie d ) ( hol ding t h at as to defamation claim, plaintiff failed to establish by c l ear an d specific evidence a prima f acie cas e that the defendan t acted negligently ).

C

. Were the t rial court ’ s “ A dd itional F indings ” proper?

U nder its first issue, U nited c hallenges the tr ia l co u rt ’ s “Additional Findings ” iss ued after United re quest ed find i ngs of fact and conclusions of law, and contends the findings are not suppo rte d by legally or factually suffic ient evidence

. I n t he challenged “additional findings , ” the trial court ma de findin g s on the issues st ated in former sect ion 27.007 o f the Texas Civil P ractice and Remedies Code

. S ee Act of May 21, 2011, 82n d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen.
Laws 961 , 96 2 (amended 2019) ( current ve rsion at Tex. Civ. Prac . & Rem. Code Ann

. § 27. 00 7 )

. The trial court found that “ [ t] he Form er Employees ] did not b rin g th eir le gal action to deter or prevent United fro m exercis ing constitutional rights ” and that the Former Employees “ did not bri ng their lega l action for an imp r oper19

purpose, inc lu d in g to ha rass or to cause unnecessary delay or to i ncrea se the cost of lit igat ion. ” To the extent that eit her of these findi ngs confl icts with our analysis about as to the TCPA ’ s applicability and e ac h of t he For mer Employees ’ failure to establi sh by c l e a r and spe cific evidence a prima facie cas e for each essential el ement o f his t wo claims, we disr egard and s et aside ea ch fin d ing.

D. Did th e trial court abuse its discretion in failing to award attorney ’ s fees, costs, and sancti o ns? When a trial co u rt dis mis ses a clai m under the TCPA, the statute requires t he trial cou rt to a ward to the movant “court cos ts, reasonable att orney ’ s f ees, and

o ther expenses incurred in defending again st th e legal act ion as justice and equity
may requ i re,” as well as “sa n ctions ag ain st the party who brought the legal action as th e court dete rmines sufficient to deter the party who brought the l egal act i on from br inging simila r actions described in this chapt er.” Act of May 2 1, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex

. Gen. Law s 961, 962

- 63 (amended 2019) (current version at Tex. Civ. Pra c. & Re m. Code Ann . § 27.009(a) )

. Be cause the trial co urt erred in denying United ’ s motion to dismiss as to the Former Employees ’ claims, the trial court erred in fa iling to (1) award U nited cou rt costs, its reasonab le attor

ney ’ s fees and other expenses in curred in defe nding against the
For m er Employees ’ cl ai ms a s jus tice and equity may require , and (2) impose

sanc tions sufficient to deter the Former Empl oyees from br inging sim ilar acti o ns

. I d

. III

. C ONCLUSION
United esta

blished that the TCPA applies to t he Form er Emp loyees ’ defamatio n and Name Appropriation C laims. None of t he Former Employees establish ed by clear and spe cific evidence a prima facie case for each e ssential element of either of these claim s

. We therefore s ustain United ’ s two issues, rever se20

the trial court ’ s order de nying U nited ’ s motion to dis miss , and remand the case for the trial court (a) to determine the amount of reasonable attorney ’ s fees, cou rt costs, and sanct i ons to aw ard to United , (b) to determine the extent to w hich justice and equity require an award to United of “other expenses incurred in defending against the legal action,” and (c) to render a judgment making such awards and dismissin g the Former Employ e es ’ cl ai m s with prejudice

.

/s/ Randy Wilson Justice

Panel consis t s of Chief Justi c e Ch ristopher and Just ices Bou rl iot and Wilson ( Bou rliot, J. dissenting without opinion).