Reversed and Remanded and Opinion filed March 11, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00178-CV

UNITED LOCATING SERVICES, LLC, Appellant

V.

DAMON FOBBS, RODNEY JOHNSON, & CARLOS HARRELL, Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2018-71384

O P I N I O N1

Appellant United Locating Services of Texas, LLC brings this interlocutory 

appeal from the trial court’s denial of a motion to dismiss brought under the Texas 

Citizens Participation Act (“TCPA”).2 Appellees Damon Fobbs, Rodney Johnson, 

1

Justice Bourliot dissents without opinion.

2 This case is controlled by a prior version of the TCPA. The TCPA was substantially amended 

by the Act of May 20, 2019, 86th Leg., R.S., H.B. 98, which modified Texas Civil Practice & 

Remedies 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 the Texas General Laws when we are citing to 
2

and Carlos Harrell, three former United employees, assert claims for defamation 

and invasion of privacy by appropriation of name or likeness based on allegations 

that United continued to use their names on certain documents after they separated 

from United. Concluding that their claims fall within the TCPA’s broad scope and

that each plaintiff failed to establish by clear and specific evidence a prima facie 

case for each essential element of either of these claims, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

United locates and identifies underground utility lines and pipework for 

customers who plan to build, dig, or otherwise move earth. United assists 

customers by appropriately marking areas of underground utilities so that the

customer can avoid them. United employed Fobbs, Johnson, and Harrell 

(collectively, “Former Employees”) as “locators.” A locator’s job is to identify and 

mark utilities at construction sites.

According to the parties, in the usual course of business a customer calls 8-

1-1, which is the “Call-before-you-dig” hotline, and the 8-1-1 call center generates 

a “Locate Request Ticket” for the customer. The customer then forwards the 

Locate Request Ticket to United and United, in turn, assigns the ticket to a locator.

United puts the locator’s name on the Locate Request Ticket if it is necessary to

send the employee into the field to locate the utilities at issue. 

If a utility line that belongs to a United customer is damaged, a “Damage 

Tracker” is generated so that United can investigate the damage and determine the 

cause. A Damage Tracker contains the name of the employee assigned to 

investigate the damage to the underground utility lines and pipework. Some

Damage Trackers also contain utility-marking information found on a Locate 

a former version of a provision of Chapter 27 of the Texas Civil Practice and Remedies Code.
3

Request Ticket generated for the area, such as the ticket number and name of the 

locator previously tasked with locating and marking the underground utility lines 

and pipework in the area.

United uses Locate Request Tickets and Damage Trackers to communicate 

with various personnel and supervisors within United in the regular course of

business, and United shares both with United customers who request the utility 

locating service or report damage to a utility line.

The Former Employees’ Claims

The Former Employees sued United asserting claims for defamation and 

invasion of privacy by appropriation of name or likeness (the “Name 

Appropriation Claims”). The Former Employees allege that at some point after 

they stopped working for United, United placed their names on various “work 

orders” (Locate Request Tickets) and “damage tickets” (“Damage Trackers”).

The Former Employees premised their Name Appropriation Claims on 

allegations that United “appropriated [their] names for [United’s own use] on work 

order tickets for [CenterPoint Energy] and other customers contracting for utility 

locating services.” In their petition the Former Employees allege that United 

received a benefit by closing out and charging damage tickets to the Former 

Employees. They allege United did not have to pay their employees for the work 

that the Former Employees allegedly performed.

The Former Employees premised their defamation claims on allegations that 

United made false written statements concerning “damage tickets.” The Former 

Employees allege that United “falsely stated that [the Former Employees] were

completing and closing out jobs and were causing damages because the locating 

was done incorrectly.” The Former Employees further allege that United made 

these statements “to receive compensation from customers without having to
4

compensate [the Former Employees] or employees who actually performed the 

work.”

The Former Employees seek actual damages, unspecified “special or 

consequential damages,” and exemplary damages.

United’s Motion to Dismiss

United filed a motion to dismiss under the TCPA, asking the trial court to 

dismiss all claims, impose sanctions, and award attorney’s fees. United asserted

that each of the Former Employees’ claims were based on, related to, or made in 

response to United’s “exercise of its rights to speak or associate freely.” 

United asserted that the claims fell under the TCPA’s scope as related to or 

based on the “exercise of the right of free speech” because, according to United,

“the speech at the heart of [the Former Employees’] lawsuit” was “communication

concerning the parties responsible for properly identifying and locating potentially 

hazardous utility lines.” United argued the speech implicated “issues of public 

concern that include health or safety, environmental or community well-being, and 

a service in the marketplace.”

United further asserted that the claims fell under the TCPA’s scope as 

related to or based on the “exercise of the right of association” because internal 

communications with company personnel as well as external communications with 

customers were made in pursuit of the common interest of “completing needed

utility location services and, in some instances, determining the cause of damage to 

those utility lines and related property damage.”

In its motion United also set out the elements of the Former Employees’

defamation claims and Name Appropriation Claims, challenging the Former 

Employees’ ability to establish by clear and specific evidence a prima facie case 
5

for each essential element of the claims.

The Former Employees’ Response to United’s Motion

The Former Employees contended in the trial court and argue in this 

interlocutory appeal that the TCPA does not apply to their claims. They allege 

United “fabricated” the Locate Request Tickets and Damage Trackers. According 

to the Former Employees, the fabrication rendered these items incapable of being 

“created to prevent future damages and risk to the public” or of “address[ing]

public concerns” because the fabricated items provided no public benefit. The 

Former Employees also attempted to establish by clear and specific evidence a 

prima facie case for each essential element of their claims. Each of the Former

Employees provided a short affidavit with attached documents.

The Trial Court’s Interlocutory Order Denying United’s Motion

At the hearing on United’s motion, the truth of the statements contained in 

the tickets and trackers was central to discussions about the applicability of the 

TCPA and whether the Former Employees established by clear and specific 

evidence a prima facie case for each essential element of the claims. After taking 

the matter under advisement and allowing United time to file an affidavit proving

its attorney’s fees, the trial court denied United’s motion to dismiss. Two days

later, United filed its request for findings of fact and conclusions of law. The trial

court issued findings, that (1) “[the Former Employees] did not bring their legal

action to deter or prevent [United] from exercising constitutional rights,” and (2)

“[Former Employees] did not bring their legal action for an improper purpose, 

including to harass or to cause unnecessary delay or to increase the cost of 

litigation.” United then brought this appeal. 
6

II.ISSUES AND ANALYSIS

Under its first issue, United argues that the trial court erred in denying its 

motion to dismiss because (1) it satisfied its initial burden to show that the TCPA 

applied to the Former Employees’ claims, and (2) the Former Employees failed to 

establish by clear and specific evidence a prima facie case for each essential 

element of the claims. Also under its first issue, United challenges the trial court’s 

two findings. In its second issue, United argues that the trial court reversibly erred 

in denying United’s request for court costs, reasonable attorney’s fees, expenses, 

and sanctions under former section 27.009(a), Act of May 21, 2011, 82nd Leg., 

R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962-63 (amended 2019) (current 

version at Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)).

Under the version of the TCPA we apply today, the party filing a motion to 

dismiss shoulders the burden to “show[] by a preponderance of the evidence” that 

the claims in question are “based on, relate[] to, or are in response to” the party’s 

exercise of the right of free speech, the right to petition, or the right of association. 

Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 

(amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 

27.005(b)(replacing “shows by a preponderance of the evidence” with 

“demonstrates", and removing “relates to”)). If the movant satisfies this burden, the 

trial court must dismiss the lawsuit unless the party asserting the claim establishes 

by “clear and specific evidence a prima facie case for each essential element of the 

claim in question.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). A “prima 

facie case” refers to evidence sufficient as a matter of law to establish a given fact 

if it is not rebutted or contradicted. See In re Lipsky, 460 S.W.3d 579, 590 (Tex. 

2015). A prima facie case reflects the minimum quantum of evidence necessary to 

support a rational inference that the allegation of fact is true. Id. The phrase “clear 
7

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

not impose a burden of proof higher than the burden required at trial. Id. at 590–

91.

Even if the claimant meets this burden, the court still must dismiss the 

lawsuit if the movant establishes by a preponderance of the evidence each essential 

element of a valid defense to the claim. Act of May 24, 2013, 83rd Leg., R.S., ch. 

1042, § 2, 2013 Tex. Gen. Laws 2501, 2501 (amended 2019) (current version at

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)). In determining whether to grant 

or deny a motion to dismiss, the trial court shall consider the pleadings and 

supporting and opposing affidavits stating the facts on which the liability or 

defense is based. Act of May 21, 2011, 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 claims and 

Name Appropriation Claims?

We first consider United’s argument that it showed the TCPA applies to the 

Former Employees’ defamation claims and Name Appropriation Claims. To satisfy

its burden, United had to show by a preponderance of the evidence that each of 

these claims is “based on, relates to, or is in response to” United’s exercise of the 

right of free speech or the right of association. See Lipsky, 460 S.W.3d at 586. We 

review de novo the trial court’s determination of whether United satisfied this

burden. See Deaver v. Desai, 483 S.W.3d 668, 672 (Tex. App.–Houston [14th 

Dist.] 2015, no pet.). 

Under the TCPA, a communication made in connection with a matter of 

public concern constitutes an exercise of the right of free speech. Tex. Civ. Prac. & 

Rem. Code § 27.001(3); Ford v. Bland, No. 14-15-00828-CV, 2016 WL 7323309, 
8

at *2 (Tex. App.—Houston [14th Dist.] Dec. 15, 2016, no pet.) (mem. op.). A 

“communication” includes “the making or submitting of a statement or document 

in any form or medium, including oral, visual, written, audiovisual, or electronic.” 

Tex. Civ. Prac. & Rem. Code § 27.001(1). Although the statute has changed, 

under the version of the TPCA applicable to today’s case, a “matter of public 

concern” is defined to include an issue related to “health or safety,”

“environmental, economic, or community wellbeing,” and “a service in the 

marketplace.” 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)).

Both the defamation claims and the Name Appropriation Claims are based

on allegations that after each of the Former Employees stopped working for 

United, United placed of the name of each of them on certain documents — Locate 

Request Tickets and Damage Trackers. In the context of the Name Appropriation 

Claims, the Former Employees complain about United’s statements that they

located and identified underground utility lines for United’s customers when the 

Former Employees were not working for United. In the context of the defamation

claims, the Former Employees allege that United falsely stated that the Former 

Employees were completing and closing out jobs and that they were causing 

damages by incorrectly doing their work as locators.

In their response to United’s motion to dismiss, the Former Employees 

acknowledge that the Locate Request Tickets and Damage Trackers are used “so 

that the utilities would not be damaged during construction.” The alleged

statements on which the Former Employees base their claims are communications 

within the meaning of the TCPA. These communications address the Former 

Employees’ work of locating and identifying underground utility lines and making 
9

these utility lines visible to those digging and improving property above ground. 

This work aids the workers, construction companies, utility companies, 

landowners, and those nearby to avoid potential environmental, health, safety, and 

economic risks associated with digging underground. These alleged

communications were made in connection with an issue related to “health or 

safety,” “environmental, economic, or community wellbeing,” and “a service in the 

marketplace.” See 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)). Therefore, the alleged communications were made in 

connection with a matter of public concern, and they constitute an exercise of the

right of free speech. See id. United carried its burden to show by a preponderance 

of the evidence that the Former Employees’ defamation claims and Name

Appropriation Claims are based on, relate to, or are in response to United’s 

exercise of the right of free speech. See id.; see also Act of May 21, 2011, 82nd 

Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current 

version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)); ExxonMobil Pipeline

Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017) (concluding under version of 

the TCPA applicable to today’s case that communications concerning employee’s

alleged failure to gauge tank 7840, related to a “matter of public concern” because 

the tank-gauging process was one completed at least in part, to reduce the potential 

environmental, health, safety, and economic risks associated with noxious and 

flammable chemicals overfilling and spilling onto the ground); Cunningham v. 

Waymire, 14-17-00883-CV, 2019 WL 5382597, at *8 (Tex. App.—Houston [14th 

Dist.] Oct. 22, 2019, no pet.) (concluding under version of the TCPA applicable to

today’s case that “[p]rivate communications on “matters of public concern” are 

covered by the TCPA”). As it did in the trial court, United relies upon the 

Coleman case as support for its contention that comparable claims have been found 
10

to fall under the scope of the TCPA. We agree that Coleman is instructive. In 

Coleman, the Supreme Court of Texas held that a Near Loss Report and an 

Inventory Planning Sheet, which we find analogous to the alleged Locate Request 

Tickets and Damage Trackers at issue, constituted “communications” under the 

TCPA. See Coleman, 512 S.W.3d at 901.

Although they present it in several ways, the Former Employees’ only 

scope-argument is that the TCPA does not apply to false statements. They argue 

that their claims cannot fall within the scope of the TCPA because, as they 

contend, the statements at the center of the allegations were false in that the 

employees, as former employees, could not have performed the locating services as 

described on the dates indicated. Specifically, the Former Employees argue that: 

1. The Coleman case is factually distinguishable because the Former 

Employees (unlike Coleman) were not employed by the company 

when the company made the statements, and the statements were 

therefore false. 

2. Under section 103.001 of the Texas Labor Code the TCPA “only 

affords a qualified privilege to employers who disclose information 

about employees which they believe to be reasonably true,” and that

United failed to demonstrate that the qualified privilege applied.

3. False statements regarding private individuals are not protected

speech, even if such false statements are matters of public concern.

This argument is not convincing. First, the Coleman court did not base its 

holding on the status of Coleman’s employment with ExxonMobil; rather, the 

court found that Coleman’s claims fell within the scope of the TCPA’s free-speech 

prong based on the subject matter of the alleged communications involved. See 

Coleman, 512 S.W.3d at 901. Thus, the Former Employees undertake to 

distinguish the case on a fact not material to the holding in Coleman. Second, 

whether United asserted and proved a qualified privilege under the Texas Labor 

Code or any other law is irrelevant to whether the Former Employees’ claims fall 
11

within the scope of the TCPA. What United may choose to assert as an affirmative 

defense to the Former Employee’s claims does not form part of the calculus of 

whether those claims fall within the TCPA’s scope. The Former Employees cite 

the Castleman opinion from the Seventh Court of Appeals for the proposition that 

false statements regarding private individuals are not protected speech, even if 

such false statements are matters of public concern. In Castleman, the court of 

appeals concluded that the TCPA applied to the defamation claims in that case. See 

Castleman v. Internet Money Ltd., 07-16-00320-CV, 2018 WL 5093857, at *2–3 

(Tex. App.—Amarillo Oct. 18, 2018, pet. denied). The court of appeals then 

concluded that the plaintiffs had establish by clear and specific evidence a prima

facie case for each essential element of either of these claims. See id. at *3–6. The 

Castleman court concluded that the TCPA applied to the defamation claims before 

it, and nothing in the Castleman opinion shows that the TCPA does not apply to 

the Former Employees’ claims. See id. at *2–6.

Because United carried its burden to show by a preponderance of the 

evidence that the Former Employees’ claims are based on, relate to, or are in 

response to United’s exercise of the right of free speech, the trial court erred to the 

extent that it concluded that United failed to make that showing. Thus, we need 

not and do not address whether United carried its burden to show by a 

preponderance of the evidence that the Former Employees’ claims are based on,

relate to, or are in response to United’s exercise of the right of association. 

B. Did the trial court abuse its discretion in its implicit ruling that the Former 

Employees satisfied their burden of establishing each of the essential elements 

of their claims by clear and specific evidence?

We next consider whether the trial court erred in its implied finding that the 

Former Employees satisfied their burden to establish each of the essential elements 

of their claims by clear and specific evidence.
12

1. Name Appropriation Claims

The three elements of a claim for invasion of privacy by appropriation of 

name or likeness are (1) the defendant appropriated the plaintiff’s name or likeness 

for the value associated with it, and not in an incidental manner or for a 

newsworthy purpose; (2) the plaintiff can be identified from the publication; and 

(3) there was some advantage or benefit to the defendant. Watson v. Talia Heights, 

LLC, 566 S.W.3d 326, 329–30 (Tex. App.—Houston [14th Dist.] 2018, no pet.); 

Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App.—Dallas 2001, 

no pet.) . Under Texas law courts apply a very restrictive interpretation of this tort.

Watson, 566 S.W.3d at 329–30. Texas law does not protect a name per se, but the 

value associated with it. Id. at 330. For United to be liable under one of the Name 

Appropriation Claims, United must have appropriated to its own use or benefit the 

reputation, prestige, social or commercial standing, public interest or other values

of the plaintiff’s name. Id. An appropriation generally becomes actionable when 

the plaintiff’s name is used to advertise the defendant’s business or product, or for 

some similar commercial purpose. Id.

In response to the motion to dismiss, Johnson submitted an affidavit in

which he testified that his employment with United terminated in January 2018 and 

that an attached Damage Tracker states that on March 22, 2018, Johnson failed to 

mark a streetlight cable on a street in Houston, Texas. Johnson stated that to his 

knowledge, this Damage Tracker issued in Johnson’s name is false because 

Johnson was no longer employed with United on that date. Fobbs testified that he 

resigned his position at United on March 29, 2017, and that an attached Request 

Ticket states that Fobbs marked a location in Stafford, Texas on August 4, 2017. 

Fobbs stated that to his knowledge, this Request Ticket is false because Fobbs was 

no longer employed with United on August 4, 2017. Harrell testified that he was

terminated from his position at United in October 2017, and that two attached 
13

Request Tickets state that Harrell marked locations in Houston, Texas and 

Pearland, Texas at 9:29 a.m. on November 8, 2017. Harrell stated that to his 

knowledge, these Request Tickets are false because Harrell was no longer

employed with United on November 8, 2017, and it was impossible for him to be 

marking locations in Pearland and Houston at the exact same time. The Former 

Employees did not address the elements of their Name Appropriation Claims in 

their response to the motion to dismiss. On appeal, they contend that “the parties 

presented proper evidence that [United] received monies based on [the Former 

Employees’] names and reputation.” The Former Employees allege that United 

used the Former Employees’ names to generate work tickets and received payment

on these complete tickets. But, no evidence before the trial court showed that 

United appropriated any of their likenesses. Nor did any of evidence show that any 

of their names had a value associated with it. The Former Employees assert that 

United received monies based on the Former Employees’ names and reputations

and that United received payment based on the Locate Ticket Requests in question. 

Yet, none of the evidence the Former Employees submitted shows that any Locate

Ticket Request or Damage Tracker with any of their names on it was ever given to

any client of United. Aaron Gibbs, the General Manager of United testified in an 

affidavit attached to the motion to dismiss that “Locate Request Tickets and 

Damage Trackers are used by and communicated to various personnel and 

supervisors within United in the regular course of business.” Gibbs also stated that 

“[t]hese documents also may be shared — and in fact have been shared — with the 

United customer who requested the utility locating service or reported the damage

at issue in the specific Locate Request Ticket or Damage Tracker.” Though Gibbs 

stated that these documents may be shared and that some of the document have 

been shared with the United customer, Gibbs did not testify that any specific 

documents, including the documents mentioned in the Former Employees’
14

affidavits, had been shared with a United customer. None of the evidence United 

submitted shows that any Locate Ticket Request or Damage Tracker containing the

name of one of the Former Employees was ever given to any client of United. The 

recent court of appeals opinions that address invasion of privacy by appropriation 

of name or likeness show that the Former Employees did not establish by clear and

specific evidence a prima facie case for this claim. In Watson v. Talia Heights, 

LLC, we reviewed a trial court’s no-evidence summary judgment dismissing a

name appropriation claim in a case in which the plaintiff (Watson) argued that the 

defendant’s use of his name in certain real estate transactions allowed the 

defendant to benefit from the plaintiff’s relative anonymity in the real estate 

business thereby permitting the defendant to “underhandedly ‘lock-up’ valuable 

real estate properties for development.” 566 S.W.3d 326, 329–31 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). This court concluded that Watson failed to 

show that alleged misuse of Watson’s name had “anything to do with [his] unique 

skills or reputation,” and that the name was interchangeable with any other

“anonymous” individual. Id. The Watson court determined that the plaintiff had 

failed to present any evidence raising a fact issue as to whether the defendant 

appropriated the plaintiff’s name for the value associated with it. See id.

In Cardiovascular Provider Res. Inc. v. Gottlich, the plaintiff alleged that 

the defendant appropriated the plaintiff’s name by including it in an investor list.

See No. 05-13-01763-CV, 2015 WL 4914725, at *3–4 (Tex. App.—Dallas Aug. 

18, 2015, pet. denied) (mem. op.). The court of appeals concluded that the 

evidence was legally insufficient to support a name appropriation claim based on 

the defendant’s alleged benefit from the value associated with plaintiff’s name 

because plaintiff had the unique qualifications to be a listed investor in that he had 

a license to practice medicine in Texas and privileges to perform cardiac and 
15

vascular surgery at Baylor Hospital. See id. The court of appeals concluded that 

for purposes of the investor list no evidence showed that the plaintiff’s name had 

unique value, and that the plaintiff’s name could have been replaced by anyone 

else’s name having the same criteria, and so any benefit defendant received from 

the transaction could not be traced back to value added by the plaintiff’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 support a finding that any of the Former Employees’ names has a 

value associated with it. To the extent, that an underground utility locator named 

on a locator ticket must be qualified by some training, education, or experience, the 

Former Employees have failed to show what those qualifications are, much less 

any details about any of the Former Employees that would give any other value to 

their names. Because none of the Former Employees established by clear and 

specific evidence a prima facie case for the first essential element of their Name 

Appropriation Claims, the trial court erred in denying the motion to dismiss as to 

these claims. See Watson, 566 S.W.3d at 329–31; Gottlich, 2015 WL 4914725, at 

*3–4.

2. Defamation Claims

In the Former Employees’ defamation claims against United, the essential 

elements include the following: (1) the publication of a false statement of fact to a 

third party, (2) that was defamatory concerning the plaintiff, and (3) the defendant 

either acted with actual malice or negligently, depending on the requisite degree of 

fault. See ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017);

Fawcett v. Grosu, 498 S.W.3d 650, 661 (Tex. App.—Houston [14th Dist.] 2016, 

pet. denied). 

In their petition the Former Employees alleged that “[United] made 
16

defamatory statements in writing.” They alleged that “[United] falsely stated, that 

the Plaintiffs were completing and closing out jobs and were causing damages 

because the locating was done incorrectly,” and that United “falsely charged 

damage tickets to the former employee.” In their response, they only submitted 

evidence of a single alleged defamatory publication as support for their contention 

that United was making statements that the locators were “causing damages 

because the locating was done incorrectly,” a Damage Ticket naming Rodney 

Johnson as the locator assigned to locate underground utilities at a site where

underground utilities had been struck. Harrell and Fobbs offered no evidence of 

any defamatory statement allegedly made by United on any Damage Tracker.

“Publication” occurs if the defamatory statements are communicated orally, in 

writing, or in print to some third person who is “capable of understanding their 

defamatory import and in such a way that the third person did so understand.”

ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). As a general 

rule a defendant who communicates a defamatory statement directly to the 

defamed person, who then relays it to a third person, has not published the matter 

to the third person. See id.

None of the evidence the Former Employees submitted shows that any 

Locate Ticket Request or Damage Tracker containing any of their names was ever 

given to any United customer. Aaron Gibbs, the General Manager of United 

testified in an affidavit attached to the motion to dismiss that “Locate Request 

Tickets and Damage Trackers are used by and communicated to various personnel 

and supervisors within United in the regular course of business.” Gibbs also stated 

that “[t]hese documents also may be shared — and in fact have been shared —

with the United customer who requested the utility locating service or reported the 

damage at issue in the specific Locate Request Ticket or Damage Tracker.”
17

Though Gibbs stated that these documents may be shared and that some of the 

document have been shared with the United customer, Gibbs did not testify that 

any specific documents, including the documents mentioned in the Former 

Employees’ affidavits, had been shared with a United customer. None of the 

evidence United submitted shows that any Locate Ticket Request or Damage 

Tracker with any name of one of the Former Employees on it was ever given to 

any United customer.

Johnson testified in his affidavit that he had attached to the affidavit “a 

damage claim # 16795 dated March 22, 2018 and it states that I Rodney Johnson, 

failed to mark the streetlight cable on Ashford Oak Dr. in Houston Texas on March 

22, 2018. To my knowledge this damage claim ID #16759 issued in my name is 

false because I was no longer employed with United Locating Services on this 

date.” Even if we presume that United communicated this Damage Tracker to

various personnel and supervisors within United in the regular course of business, 

no evidence before the trial court shows that the statements regarding Johnson in 

this document were communicated to a third person who was capable of 

understanding the defamatory import of one of these statements and in such a way 

that the third person understood the defamatory import of any of these statements.

See Rincones, 520 S.W.3d at 579. Thus, none of the Former Employees 

established by clear and specific evidence a prima facie case for the publication

element of their defamation claims, and for this reason, the trial court erred in 

denying the motion to dismiss as to the defamation claims. See id.

Showing that Defendant Acted with Actual Malice or Negligently

The Former Employees alleged that United intentionally placed their names 

on Locator Request Tickets and Damage Trackers, but they provided no evidence 

to support the allegation. The Former Employees presented no clear and specific 
18

evidence of actual malice or negligence. No evidence before the trial court 

demonstrated a prima facie showing that United made any statement concerning

any of the Former Employees with knowledge that it was false or with reckless 

disregard of whether it was true. Nor was there any evidence demonstrating a 

prima facie showing that United failed to investigate the truth or falsity of any 

statement concerning the Former Employees or failed to act as a reasonably 

prudent actor. No evidence shows that United made any false statement of fact

concerning any of the Former Employees with negligent regard for the truth. Thus, 

none of the Former Employees established by clear and specific evidence a prima 

facie case that United acted with actual malice or negligently, and for this reason,

the trial court erred in denying the motion to dismiss as to the defamation claims. 

See Fawcett v. Grosu, 498 S.W.3d 650, 662, 663 (Tex. App.—Houston [14th Dist.] 

2016, pet. denied) (holding that as to defamation claim, plaintiff failed to establish 

by clear and specific evidence a prima facie case that the defendant acted 

negligently).

C. Were the trial court’s “Additional Findings” proper?

Under its first issue, United challenges the trial court’s “Additional 

Findings” issued after United requested findings of fact and conclusions of law,

and contends the findings are not supported by legally or factually sufficient

evidence. In the challenged “additional findings,” the trial court made findings on 

the issues stated in former section 27.007 of the Texas Civil Practice and Remedies 

Code. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. 

Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code 

Ann. § 27.007). The trial court found that “[t]he Former Employees] did not bring 

their legal action to deter or prevent United from exercising constitutional rights”

and that the Former Employees “did not bring their legal action for an improper 
19

purpose, including to harass or to cause unnecessary delay or to increase the cost of 

litigation.” To the extent that either of these findings conflicts with our analysis 

about as to the TCPA’s applicability and each of the Former Employees’ failure to

establish by clear and specific evidence a prima facie case for each essential 

element of his two claims, we disregard and set aside each finding. 

D. Did the trial court abuse its discretion in failing to award attorney’s fees, 

costs, and sanctions?

When a trial court dismisses a claim under the TCPA, the statute requires the 

trial court to award to the movant “court costs, reasonable attorney’s fees, and 

other expenses incurred in defending against the legal action as justice and equity 

may require,” as well as “sanctions against the party who brought the legal action 

as the court determines sufficient to deter the party who brought the legal action 

from bringing similar actions described in this chapter.” Act of May 21, 2011, 

82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962-63 (amended 2019) 

(current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)). Because the 

trial court erred in denying United’s motion to dismiss as to the Former 

Employees’ claims, the trial court erred in failing to (1) award United court costs, 

its reasonable attorney’s fees and other expenses incurred in defending against the 

Former Employees’ claims as justice and equity may require, and (2) impose 

sanctions sufficient to deter the Former Employees from bringing similar actions. 

Id. 

III. CONCLUSION

United established that the TCPA applies to the Former Employees’

defamation and Name Appropriation Claims. None of the Former Employees

established by clear and specific evidence a prima facie case for each essential 

element of either of these claims. We therefore sustain United’s two issues, reverse 
20

the trial court’s order denying United’s motion to dismiss, and remand the case for 

the trial court (a) to determine the amount of reasonable attorney’s fees, court 

costs, and sanctions to award to United, (b) to determine the extent to which 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 

dismissing the Former Employees’ claims with prejudice. 

/s/ Randy Wilson

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson

(Bourliot, J. dissenting without opinion).