## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-17-00190-CV

JENNIFER LANE A PPELLANT V. CHRISTINE H. PHARES A PPELLEE

---------- FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 16-04838-16

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### OPINION

---------- This is a permissive interlocutory appeal from the trial court’s dismissal of Appellant Jennifer Lane’s defamation suitagainst Appellee Chri stine H. Phares. The trial court dismissed Lane’s claims under the Texas Citizens Participation Act (TCPA), finding that the TCPA app lied to Lane’s claims, that Lane is a limited-purpose public figure, and that La ne did not establish that Phares made internet postings about La ne with actual malice. See Tex. Civ. Prac. & Rem.2 Code Ann. §§ 27.003, 27.008 (West 2015). We granted Lane permission to appeal the trial court’s dismissal order. See Tex. R. App. P. 28.3. Because Lane is a limited-purpose public figure and failed to produce clear and specific evidence that Phares published defamato ry statements with actual malice, we affirm. I. Background Lane is an operatic singer and a voice professor at the University of North Texas (UNT). Phares is a former student of Lane’s atUNT. Phares anonymously posted a comment on an onlin e forum for classical singers, stating that Lane: (1) filed lawsuits against each of her former university employers and against UNT; (2) “loses an average of3–4 students out of her studio per semester”; (3) “teaches in unhealthy ways [and] ca uses vocal problems”; and (4) “talks shit on singers and faculty in a serious way.” Phares also posted comments on the RateMyProfessors.com website stating that: (1) Lane’s teaching methods caused documented vocal injury; (2) Lane is distracted and not focused during lessons, often on computers or her phone wh ile a student is singing; (3) Lane is not orga nized and is often late to lessons; (4) Lane demeans students and is not respected by faculty, peers, or students; and (5) Lane has been on faculty probation. Lane sued Phares and other unname d defendants for defamation, a permanent injunction, and a request for a correction, clarification, or retraction under civil practice and remedies code se ction 73.055(d). See Tex. Civ. Prac. &3 Rem. Code Ann. § 73.055(d) (West 20 17). Phares answered, filed a counterclaim for fraud, and filed a motion to dismiss under the TCPA. In the motion, she asserted that Lane’s suit was based on, related to, or was in response to Phares’s exercise of her right s to free speech a nd of association and that Lane is an all-purpose public figure, or at least a limited-purpose public figure. In response, Lane asserted that she is not a public figure, limited or otherwise, and that even if she is, Phar es posted her online comments with actual malice. After a hearing, the trial court granted Phares’s TCPA motion to dismiss. In the dismissal order, the trial court fo und by a preponderance of evidence that Lane is a public figure and that her legal action is based on, relates to, or is in response to Phares’s exercise of her righ ts of free speech an d association. The trial court further found th at Lane did not establish t hat Phares’s comments were made with actual malice. At Lane’s request, the trial court made findings of fact and conclusions of law. The trial court found that Lane has chosen a career that regularly involves media attention and has in vited public attention an d that she has achieved notoriety and recognition in her community as both an opera singer and a professor. The trial court concluded that Lane is a public figure and that she did not establish that Phares acted with actual malice with regard to the internet postings. Upon Lane’s further request, the trial court ma de the additional finding that Lane is a limited-purpose public figure.4 Lane filed a petition seeking permiss ion for this interlocutory appeal challenging the trial court’s order, which we granted. See Tex. R. App. P. 28.3; Lane v. Phares , No. 02-17-00190-CV, 2017 WL 2807404 (Tex. App.—Fort Worth June 29, 2017, no pet.). II. Dismissal under the TCPA We review de novo a tria l court’s ruling on a moti on to dismiss under the TCPA. Dall. Morning News, Inc. v. Hall , 524 S.W.3d 369, 374 (Tex. App.—Fort Worth 2017, pet. filed); Rehak Creative Serv s., Inc. v. Witt , 404 S.W.3d 716, 724–27 (Tex. App.—Houston [14t h Dist.] 2013, pet. denied), disapproved of on other grounds by In re Lipsky , 460 S.W.3d 579 (Tex. 2015). We construe the TCPA liberally to fully effectua te its purpose and intent. Hotchkin v. Bucy , No. 02–13–00173–CV, 2014 WL 7204496, at *1 (T ex. App.—Fort Worth Dec. 18, 2014, no pet.) (mem. op.) (citing Tex. Ci v. Prac. & Rem. Code Ann. § 27.011(b) (West 2015)). A plaintiff defeats a motion to dismis s under the TCPA by establishing by clear and specific evidence a prima facie case for each essential element of the plaintiff’s claim. Tex. Ci v. Prac. & Rem. Co de Ann. § 27.005(c) (West 2015). The requirement for “clear and specificevidence” means the plaintiff “must provide enough detail to show the factual basis for its claim.” Lipsky , 460 S.W.3d at 590–91. For a defamati on claim, a plaintiff must prove among other elements that the defendant published a false statement of fact and that the defendant did5 so with the requisite degree of fault—with negligence if the plaintiff is a private figure or with actual malice if t he defendant is a public figure. Id. at 591. III. Public Figures and Defamation Law Whether Lane is a public figu re is a question of law. See Neely v. Wilson , 418 S.W.3d 52, 70 (Tex. 2013). “In thisdetermination, federal, not state, standards apply.” Schofield v. Gerda , No. 02-15-00326-CV, 2017 WL 2180708, at *12 (Tex. App.—Fort Worth May 18, 2017, no pet.) (mem. op.) (citing Rosenblatt v. Baer , 383 U.S. 75, 84, 86 S. Ct. 669, 675 (1966)). There are two classes of public fi gures in the defamation context: (1) general-purpose public figures, “who have achieved such pervasive fame or notoriety that they become public figure s for all purposes and in all contexts,” and (2) limited-purpose public figures, who are “public figures for a limited range of issues surrounding a partic ular public controversy.” WFAA-TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998). General-purpose public figures hold positions of persuasive power and in fluence, while limited-purpose public figures have “thrust themselves to the fore front of particular public controversies in order to influence the resolution of th e issues involved. In either event, they invite attention and comment.” Gertz v. Robert Welch, Inc. , 418 U.S. 323, 345, 94 S. Ct. 2997, 3009 (1974); see also Hoskins v. Fuchs , 517 S.W.3d 834, 842 (Tex. App.—Fort Worth 2016, pet. filed) (stating that limited-purpose public figures “thrust themselves to the forefron t of particular public controversies in order to influence the resolution of the issu es involved . . . invit(ing) attention and6 comment”; “inject ( ) (the mselves) or (are) drawn into a particular public controversy . . . assum(ing) special pr ominence in the resolution of public questions”; and “thrust (themselves) into the vortex of (a) public issue . . . (or) engage the public’s a ttention in an attempt to influe nce its outcome.”) (citations omitted). “[P]ublic figures effectively have assumed the risk of potentially unfair criticism by entering into the public are na and engaging the public’s attention.” Steaks Unlimited, Inc. v. Deaner , 623 F.2d 264, 273 (3d Cir. 1980). We use a three-part test to determi ne whether a person is a limitedpurpose public figure: (1) the controversy at issue mu st be public both in the sense that people are discussing it and people other than the immediate participants in the cont roversy are likely to feel the impact of its resolution; (2) the plaintiff must have more th an a trivial or tangential role in the controversy; and (3) the alleged defamation must be germane to the plaintiff’s participation in the controversy. Neely , 418 S.W.3d at 70.

IV. Lane Qualifies as a Public Figure under Defamation Law A. The Record Contains Conclusive Evidence Establishing Lane’s Public-Figure Status 1. Lane’s Professional Website Lane maintains a personal website ab out her career. Phares included excerpts from the site as exhibits to her affidavit included with her TCPA motion to dismiss. According to the site, “[t]h e press has described [Lane’s] singing as7 ‘clear, rich, plangent,’ ‘c ompelling and dramatic,’ and possessing ‘agility and charisma.’” On her biography page on her website, Lane lists her many acclaimed public performances, stating that “[s]he has been featured by many of the most prestigious institut ions and orchestras in th e US and abroad,” including the Metropolitan Opera, New York CityOpera, San Francisco Opera, Opera Monte Carlo, Opera du Caen, and the S an Francisco Sympho ny. She also states that she “has over fifty CD reco rdings to her name on a wide variety of labels, as well as two films.” Lane’s biography page on her perso nal website also mentions her distinguished teaching career, stating t hat she taught at the University of Kentucky-Lexington “before being recruite d to [UNT] as Associate Professor.” She states that before the University of Kentucky, she taught at Stanford and that she teaches regularly at summer workshop s. She states that her students have won awards from the Metropolitan Opera Council, the Orpheus Competition, the Holt Foundation, and the Na tional Association of Teac hers of Singing and have been admitted to graduate st udy at the Peabody Institut e, the Royal Academy of Music/London, Indiana University, McGill, and Eastman. She further states that “[a] number of them are enjoying active national and international opera, concert, and teaching careers.” The website additionally has a “Critical Acclaim” page wher e Lane sets out excerpts from positive press reviews of her performances drawn from reviews of operas she has appe ared in across the country, including reviews from the8 Philadelphia Inquirer , the Cleveland Plain Dealer , the Chicago Tribune , the Washington Post , the Los Angeles Times , TheaterJones.com, and several other arts-oriented websites. Lane’s personal website also has pages with lengthy listings of her operatic ro les, orchestra appearances, recitals, and discography, and a page dedicated to her voice teaching, discussing her teaching positions past and present and masterclasses she has taught. 2. Lane’s Faculty Page on UNT’s Website Lane’s faculty page on the UNT website is also included as part of the evidence supporting the motion to dismis s. The faculty page, after listing her contact information, begins with a st atement that she wa s nominated for a Grammy in 2015 for one of her operatic ro les. The page then notes the various institutions at which she has taught and states that sh e was an ensemble member on a Grammy-winning recordin g of a symphony performance with the New York Philharmonic. Next, the page asserts that many of her students are now successful professional singers and ac ademics. Then the page states that Lane “is recognized internationally for her st unning interpretation s of repertoire.” The page notes that she performed a main role in a production of Dido & Aeneas , which was filmed for BRAVO Tele vision and has been released on DVD, and that the DVD “is now used by universities na tionwide in Humanities, Opera, Gender Studies [,] and other courses.”9 3. Lane’s Affidavit In Lane’s affidavit submitted in respon se to the motion to dismiss, she swore to the following statements re garding her career achievements: 5. Over the course of my career in vocal performance and operatic singing, I have garnered a reputation as an excellent singer. I began singing professionally in 1972. I have performed in opera and concert with the Tanglewood Festival, Boston Early Music Festival, the New GettyCenter, the Frick Co llection, Opernhaus Halle, Opernhaus Dessau, Utah Opera, Salzburger Bachgesellschaft, Seattl e Baroque Orchestra, Jerusalem Symphony, St. Louis Symphony, Orchestra de lla Toscana, and the New York City Opera, where I performed over twenty roles, including Amastre in its acclaimed production ofHandel’s Xerxes, voted opera production of the ye ar by USA Today. 6. In 2015, I was nominated for a Grammy award for my role (Athena) in Milhaud’s Orestie. 7. I am an ensemble memb er on the Grammy-winning Deutsche Grammophon recording of Mahler’s Symphony No. 3, with the New York Philharmonic, cond ucted by Leonard Bernstein.

. . . . 10. While my operatic performa nces have been reviewed by various opera critics, none of th ese reviews have pertained to any part of my life aside from the parti cular performance that the critic reviewed. . . . . 11. I have never been the subject of a news article specifically about me or one of my operatic performances that was not also about the work performed or the wo rk to be performed and did not also cover other individuals involved in the performance. 12. I have never been the subj ect of an article in Time Magazine or Life Magazine. I have never appeared on any national radio or television talk show. 13. My Internet presence is limit ed to my professional website, my faculty profile page on UNT’s w ebsite, my Linkedln account, and my Facebook page.10 She further swore that she has never held a press conference and has no fan websites devoted to her, that no me mber of the press ha s reported on what people are saying about her accomplishments or her teaching positions, and that she is not a household na me and not a celebrity. 4. Phares’s Affidavit In Phares’s affidavit supporting the motion to dismiss, she averred that when Lane was trying to recruit her to her studio at UNT, “bot h in person and on the telephone, [Lane] mentioned her car eer and how well connected she is due to her performance career.” Phares looked up Lane’s pe rsonal website and faculty page and “found her lengthy resume to be impressive and felt that her connections within the opera world could be beneficial to [Phares] in the future.” She further stated that when she was audi tioning for differentschools prior to enrolling at UNT, students no rmally sat in the hallways and talked before their auditions, and in these ta lks students would ask each other which teacher they studied with “and then proceed to spea k of that teacher.” When Phares mentioned Lane, other student s at the auditions would tell her that Lane had a reputation for suing each of her former university employers. According to Phares, this conversation happened at mu ltiple auditions with other students.11 5. Phares’s Deposition In Phares’s deposition, 1 she testified that after s he started at UNT, a friend was looking at graduate sch ools, and as a potential stud ent he took a lesson with Lane and another UNT voice professor. Afterward, La ne called Phares to ask which teacher Phares’s student friend li ked better, and Lane “reminded [Phares] of [her] stature” and asked Phares to tell her student friend how much Phares liked her lessons with Lane. Phares also further testified, as discussed more below, that the conversations about Lane suing her employ ers that she had he ard at auditions continued after she enrolled at UNT. According to Phares, once she became a UNT student, when she went to auditions for various programs, if she told other students that Lane was her teacher, the students atthose auditions would tell her those same rumors about La ne filing lawsuits against her employers. At one audition, she was told that Lane had problems at other schools with students wanting to leave. B. Lane is a Public Figure First , the evidence in the record demon strates a public controversy about Lane’s role as a university voice teacher. “[A] public controvers y is a dispute that

1 In ruling on a TCPA motion to dismiss, the trial court generally considers the pleadings and supporting and opposing affidavits. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015). Howe ver, the trial court may allow specific, limited discovery relevant to the moti on, and the trial court allowed such discovery in this case, incl uding allowing Lane to conduct a three-hour deposition of Phares. Id. § 27.006(b).12 in fact has received publicattention because its ramifications will be felt by persons who are not dire ct participants.” Waldbaum v. Fairchild Publications, Inc. , 627 F.2d 1287, 1296 (D.C. Cir. 1 980). “‘To determine whether a controversy indeed existed an d, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question.’” McLemore , 978 S.W.2d at 572 (quoting Waldbaum , 627 F.2d at 1297). Here, students were talking about t he issue, and the issue affe cted more than just Lane and Phares, the immediate participants in the controversy, beca use it dealt with a professor’s fitness for, and performance o f, her role as a teacher, which affects any potential or current UNT voice student. Second , Lane had more than a trivial or tangential role in the public controversy. In determining Lane’s role in the contro versy, we consider such factors as whether: (1) she actually sought publicity surrounding the controversy; (2) she had access to the media; and (3) s he “voluntarily engag(ed) in activities that necessarily involve( d) the risk of increased exposure and injury to reputation.” McLemore , 978 S.W.2d at 573 (quotation marks and citation omitted). Lane “either must have been purposely trying to influence the outcome or could realistically have been expe cted, because of [her] position in the controversy, to have an impact on its resolution.” Waldbaum , 627 F.2d at 1297. The record conclusively shows that, as the trial court found, “Lane has chosen a career that regular ly involves media attention and has invited public attention.” There is no question that Lane, in her career, has “invite[d] attention13 and comment.” Gertz, 418 U.S. at 345, 94 S. Ct. at 3009 (stating that public figures “invite attention and comment”). Ce rtainly, students ou tside of UNT knew of Lane as a voice teacher. Indeed, Lane ’s own affidavit asse rts that she has a reputation as an exceptional singer, wa s nominated for a Grammy award, and was a member of an ensemb le that won a Grammy. Cf. Celle v. Filipino Reporter Enterprises Inc. , 209 F.3d 163, 177 (2d Cir. 2000) (“Given plaintiff Celle’s own characterization of himsel f as a ‘well known radio commentator’ within the Metropolitan Filipino–American community, the distri ct court correctly held that he is a public figure.”). In addit ion, Phares’s deposition, on which Lane also relied, is some eviden ce that Lane used her stat ure as a world-recognized opera singer to recruit students to he r studio and that st udents at UNT and students at other schools had heard of Lane. The record further shows that Lane is recognized nationally and internationally for her singing. Lane’s singing performances have been discussed in me dia stories in newspapers across the country. In fact, a recording of one of Lane’s performances, filmed for television, is used as a teaching tool in universi ties across the country. And, Lane intertwines her renown in th e opera world with her teac hing credentials, using her successes in her singing career to bo ost her voice teacher credentials on her faculty page and discussing her teaching successes on her professional website, promoting herself on the site as a teache r who leads her students to success in the opera world.14 Third , the statements Lane su ed Phares for making, discussed more below under Lane’s second issue, all concer ned Lane’s role as a voice teacher. Despite this undisputed evidence ofLane’s notoriety in her profession, Lane directs our att ention to this court’s decision in Hoskins and argues that the facts in this case “closelyalign with the facts in Hoskins ,” where we held that the plaintiff, a university professor, was not a public figure. See Hoskins , S.W.3d at 843. However, even a cursory review of that case reveals that the facts of this case are quite unlike the facts of Hoskins . Unlike here, the record in that case established only that the plaintiff was a tenured university professor. Id. Based on that fact, we held that the evidence was insufficient to show that the plaintiff was a public official, a general-purpose public figure, ora limited-purpose public figure. Id. Oddly, Lane then argues that it was the trial court’s fault for making her a public figure by “inappropriately puni sh[ing] Professor Lane for promoting her career,” “as revealed by the [trial court’ s] repeated references to Professor Lane’s professional websites.” This argument is without merit. As Abraham Lincoln observed, “[w]hat kills a skunk is the publicity it gives itself.” G REAT Q UOTES FROM G REAT L EADERS21 (compiled by Peggy Anderson, 1990). Lane’s career is what it is without any assist ance from the trial court. Lane simply cannot sing her national and internatio nal renown on her website and the UNT faculty page, stand by thos e statements in her affidavi t, and then claim she has no public presence. The trial court’s re cognition of Lane’s accomplishments as15 set out on her websites and her affidavit was not “punishment” for her selfpromotion—it was an acceptance of the eviden ce before it. We hold that Lane is, at the least, a limited-purpose public figure. We therefore overrule Lane’s first issue. V. Lane Did Not Establish Actual Malice A. Actual Malice in Defamation Claims As a public figure, to ma intain her claim Lane had to produce evidence that Phares published a defamatory statemen t about her with actual malice. See Hearst Corp. v. Skeen , 159 S.W.3d 633, 636–37 (Tex. 2005). “Actual malice” in the defamation context does not mean injurious motive or ill will toward the plaintiff, but rather means th at the defendant had knowle dge of the falsity of the statement or reckless disregard for the truth. Greer v. Abraham , 489 S.W.3d 440, 444 (Tex. 2016). The focus therefore “is on the defendant’s attitude toward the truth, not [her] attitude toward the plaintiff.” Id ; see also New Times, Inc. v. Isaacks , 146 S.W.3d 144, 162 (Tex. 2004) (“Constitutional malice generally consists of (c)alculated falsehood.” (cit ations and quotation marks omitted)). “Reckless disregard isa subjective standard, focusi ng on the defend ant’s state of mind.” New Times , 146 S.W.3d at 162. To esta blish reckless disregard, the plaintiff “must establish that the defendant in fact entertained se rious doubts as to the truth of [her] publication, or had a high degree of awareness of . . . (the) probable falsity of the published information.” Id. (citations and quotation marks omitted); see also Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485,16 511 n.30, 104 S. Ct. 1949, 1965 n.30 (198 4) (“The burden of proving ‘actual malice’ requires the plaintiff to demonstrat e . . . that the def endant realized that his statement was false or that he subjectively entert ained serious doubt as to the truth of his statement. ”). “[T]he actual malice standard focuses on the defendant’s state of mind atthe time of publication not after the defendant was sued.” Cruz v. Van Sickle , 452 S.W.3d 503, 517 (Tex. App.—Dallas 2014, pet. struck). “Although the failure to investigat e does not, on its own, demonstrate actual malice, a purposeful avoi dance of the truth does.” Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. , 219 S.W.3d 563, 578–79 (Tex. App.—Austin 2007, pet. denied); see also Harte-Hanks Commc’ns, Inc. v. Connaughton , 491 U.S. 657, 692, 109 S. Ct. 2678, 2698 (1989) (“[F]ailure to investigate will not al one support a finding of actual malice”); Duffy v. Leading Edge Prods., Inc. , 44 F.3d 308, 313 (5th Cir. 1995) (“Negligence, lack of investigation, or failure to act as a reas onably prudent person are insufficient to show actual malice.”). “An understanda ble misinterpretation of ambiguous facts does not show actual malice, but i nherently improbable assertions and statements made on inform ation that is obviously dubious may show actual malice.” Bentley v. Bunton , 94 S.W.3d 561, 596 (Tex. 2002). Further, while a lack of care or a bad motive is not proofof actual malice, “care and motive are factors to be considered.” Id.17 B. Lane Failed to Make a Prima Fa cie Showing of Phares’s Actual Malice Lane argues that she produced prima facie evidence of Phares’s actual malice because: (1) Pharesattested that her commen ts were based on gossip from anonymous individuals, rendering her comments “‘inherently improbable assertions’ that were ‘obviously dubious’ ”; (2) Phares failed to investigate the truth of the rumors she heard before repu blishing them as fact; and (3) Phares’s comments were not based on personal experience. We discuss below the basis of Phares’sbelief in each of the statements she made. However, we mustfirst address Lane’s assert ion in her brief that she had prima facie evidence of actual ma lice because “Phares testified that her normal habit was to only make stat ements that concerned her personal experience[,]” but “in this case, none ofthe defamatory stat ements concern her personal experience.” To support this asse rtion, Lane cited to a part of Phares’s deposition in which Phares talked about ensuring that her co mplaints were based on her personal experience. Lane, however, “cherry-picks” and misrepresents the context of thattestimony. A closer look at the depo sition transcript shows Phares was responding to a question as king specifically about statements she made in a letter to the chair of th e UNT voice department in which she complained about Lane’s teaching. Wh en asked what care she exercised to make sure her statements in that specific letter were correct, she replied that she “reread and made sure it wa s all based on [her] person al experience” and that she reviewed recordings ofher voice lessons and a vo ice journal she kept with18 notes from her lessons. Phares’s respon se to the question did not address the basis of Phares’s belief for all of the statements she posted online and for which Lane has sued her. 1. Phares’s statements that Lanefiled lawsuits against every school that employed her, including UNT The first statements for which Lane c ontends she had evidence of actual malice was Phares’s statements that La ne filed lawsuits against each of her university employers. Lane stated in her affidavit that she has never filed a lawsuit against a university. As for Phar es’s knowledge or be lief about the truth of her statements, Lane asserted that sh e met her burden to show actual malice because Phares’s TC PA motion “establishes that she knew that she could not know whether her statements we re true or not because sh e is not an attorney.” Lane’s argument references a contention Phares made in her TCPA motion that her online comments were st atements of opinion. See Vice v. Kasprzak , 318 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“The analysis for distinguishing between an actionable statem ent of fact and a constitutionally protected expression of opinion focuses on the statement’s verifiability and the entire cont ext in which it was made. ”). In arguing that her comments were statements of opinion because they were not objectively verifiable, Phares asserted that while an attorney with access to the filings of each county of each sch ool that had employed Lane co uld possibly verify the accuracy of the statements, such an un dertaking would not be easily done, much19 less by a lay person. That section of Ph ares’s motion to dismiss did not negate her belief in the truthfulness of the st atements. Elsewhere in her motion, she argued that the statements sh e made were true, and she addressed the basis for her belief. Further, Phares’s affidavit and deposi tion testimony, both of which Lane included with her respon se to Phares’s TCPA moti on, showed the basis for Phares’s belief. In Phares’s affidavit, she explained that she began to hear rumors about Lane while auditioning for schools and on the audition circuit for companies and programs. During those auditions, students commonly sat and talked in the hallways before their auditions, and conversation would turn to who studied with whom. According to Phar es’s affidavit, “[ n]umerous, non-UNT students on the auditi on circuits had stated that Lane had caused problems at her former schools and th reatened lawsuits, filed la wsuits, and was known for trying to settle things out of court and un der the rug.” At first, Phares dismissed the talk as mere gossip, but she “becam e convinced it was the truth when more and more students recounted the same story at various auditions.” She “further ran across a lawsuit online while searchin g for Lane’s name, wh ich [she] believed fit the description of one st ory [she] had heard, but was unable to verify it as the case had been settled.” Then, while she was a student atUNT, multiple students told Phares that Lane had filed a compla int against another voice teacher. And during her lessons with Lane, Lane woul d make statements against UNT and20 students, and Lane told Phares “that sh e took gossip very seriously and would not hesitate to involve the legal system.” In her deposition, Lane’s attorney asked Phares to elaborate on the statements in her affidavit. Phares testif ied that she first hea rd the rumors about Lane while auditioning at t he University of Kentucky, a school where Lane had once taught. People made similar statem ents about Lane’s litigious reputation at other auditions, and Phares continued to hear such ru mors about Lane after she started at UNT. Multiple UNT student s told Phares that Lane had filed a complaint against a specific UNT professor; other studen ts said she had filed or was planning to file a lawsuit against the professor. At her deposition, Phares provided the names of some of the UN T students who were present for the conversations, but she coul d not remember which stud ent said what. At an audition for a program in Austin, another auditioning student asked Phares if it was true that Lane had filed a lawsuit ag ainst every school she had ever worked for. Lane’s attorney asked Phares if sh e had ever asked Lane about the rumors. Phares responded that sh e had not because she did not feel comfortable asking Lane ques tions due to the atmosphere Lane created. Phares testified that she “didn’t feel as though questions were enco uraged during [her] lessons and sometimes ques tions were not allowed,” and Phares “was pretty intimidated” by Lane. Phares also stated that there “were a few times in [the] lesson where [Phares] was asking for a pedagogical cl arification and [she] was21 not allowed to finish the qu estion and told [by Lane] something like, [‘]that’s an undergraduate question[ ’] or [‘]don’t question me.[’]” Phares stated that the lessons with Lane developed an enviro nment “to where [she] didn’t feel comfortable talking about thin gs that were a little uncomfortable to talk about.” This testimony mirrored the complaint that Phares made to the chair of the UNT voice department, in which she stated that she was “uneasy and often nervous around Lane,” that she dr eaded her lessons and had trouble sleeping the night before and after, that “Lane often shut[] [her] down when [s he] attempt[ed] to explain things,” and that Phares had “tri ed to disagree or discuss things with Lane and ha[d] been shut dow n and not acknowledged.” Asked at her deposition if she believe d at the time she posted online the alleged defamatory statements that Lane had filed lawsuits against the University of Kentucky, Stanford University, and UN T, Phares responded that it was gossip she had heard “a lot,” and sh e did believe it. When aske d what she did to verify the accuracy of her statemen ts about Lane filing lawsui ts, Phares answered that her statement “was based on things I heard from others at various points and the repetition and so I started to believe it wa s true.” Then, after finding information online about a lawsuit involving a Jennifer Lane, “when [she] put all that together, [she] just believed it was true.” Phar es found a case su mmary online of a 1997 suit that named the pl aintiff, defendant, and the nature of the case. The defendant in the suit was not a universi ty, but because the pl aintiff’s name was Jennifer Lane and the suit involved defa mation—and some of the people telling22 Phares the lawsuit rumors had menti oned defamation—Phares believed at the time that the 1997 suit had been filed by her voice teacher, Lane. Finally, upon deposition questioning from her own lawyer, Phares acknowledged that it was po ssible that people talking about Lane’s filings against her employers had used the word “c omplaints” and that Phares had misinterpreted the word “complaint” to mean a legal action , meaning that the people speaking could have meant that Lane had filed in ternal complaints at the universities where she worked. In sum, Lane’s evidence of actual ma lice included Phares ’s testimony that she was repeatedly told by other stud ents about Lane filin g complaints or lawsuits against each of her university employers. Lane’s behavior and demeanor in her lessons intimidated Ph ares and deterred her from asking Lane about the rumors directly, butPhares testified that Lane herself told Phares she would not hesitate to take legal action to defend herself against gossip. Phares attempted to find confirmati on online using resources av ailable to a lay person, and she found a lawsuit thatshe believed, albeit mistak enly, supported what she had come to believe. This evidence does not indicate that Phares purposefully avoided learning the truth. See Bentley , 94 S.W.3d at 596 (“A failure to investigate fully is not evi dence of actual malice; a pu rposeful avoidance of the truth is.”). From this evidence, Lane did not make a prima facie showing that when Phares published the st atements about Lane filing lawsuits and complaints, she knew the statements were false, had serious doubts as to their truth, or had23 a high degree of awareness of their probable falsity. See New Times , 146 S.W.3d at 162; Cruz, 452 S.W.3d at 517. 2. Phares’s statement that Lane lo ses an average of three to four students per semester Lane contends that she satisfied her prima faci e burden to show that Phares acted with actual malice in posting on the internet that Lane loses an average of three to four st udents per semester because Phares testified in her deposition that she neve r asked Lane about the truth of the statement. According to Lane, “Phares testified th at she had personal knowledge of the students who left Professor Lane’s studio, and so she should have known that only one student left Professor Lane’s studio in the Fall of2014 and three students (including Phares) left Prof essor Lane’s studio in Spring 2015.” Lane again misconstrues Phares’s test imony. Phares testified in her deposition that she still belie ved that her statement was true at the time that she made it based on her personal experi ence. She named two students she believed left in the fall 2014, and seven students, incl uding herself, she believed left in the spring 2015, al though she stated thatbecause the stud ents left at the end of the semester, one or two of those students may not have officially withdrawn until fall 2015. Phares stated that she based her knowledge of these students leaving on se eing students who used to be in Lane’s studio with her begin going to performance rooms of voice teachers ot her than Lane and seeing different teachers listed for them in performance programs. She also had24 conversations with most of those studen ts about leaving Lane’s studio. Phares even described her conversation with the st udents. In those conversations, the students talked about leaving, trying to obtain approval to leave Lane’s studio, or starting the process to leave, and the va rious steps they were taking or thought they should take to get official approval to withdraw. Phares testified that she trusted the students she spoke with to tell her the truth. Given this evidence, we cannot say that Lane esta blished a prima facie case that Phares knew the statement was false or that she showed a reckless disregard for the truth. See New Times , 146 S.W.3d at 162. 3. Phares’s statement that Lane teaches in unhealthy ways and causes vocal problems and injuries Lane argues that she met her burden to show actual malice regarding Phares’s internet postings about Lane te aching in unhealthy ways and causing vocal problems because Phares had no pe rsonal experience wi th Lane causing a documented vocal injury. In Lane’s affidavit, she stated, without elaboration, that she does not teach in unhealthy ways and ha s never caused a student vocal problems or vocal injuries. As for eviden ce about Phares’s knowle dge of the truth of her statements, we agree with Lane that in Phares’s deposition testimony describing her experience in Lane’s studio, she admi tted that none of the techniques Lane had her perform in lessons caused her actual injury. However, Phares further explained that she did experience vocal problems , which, to her, was a different25 issue than vocal injury . When she wrote of Lane ca using vocal injury, she was referring to the experience of another student. She then provided the basis for her online comments. Regarding vocal problems, Phares testif ied that “you shouldn’t leave your lessons feeling vocally tired or hoarse at all, and I wo uld leave my lessons feeling that way.” At the time of her deposition, she acknowledged that in retrospect, it was possible that in her lessons, she in correctly performed the techniques Lane was teaching her. But despite having less certainty than she previously had that Lane had caused her problems, she still be lieved that Lane taught in unhealthy ways that caused vocal prob lems. That she later ques tioned her previous belief does not show that at the time she made the statement , she knew it was false or that she had a re ckless disregard for the truth. See New Times , 146 S.W.3d at 162. As for her statements that Lane ha d caused a student documented vocal injury, Phares explained that while Lane did not cause her vocal injury, when she posted the comments online, she believed that Lane ha d caused another student vocal injury. She first heard the allegation from anothe r auditioning student while she was auditioning at th e University of Kentucky. The student’s comment concerned Phares, but she tried to “tune it out.” Once at UNT, Phares heard about the issue from Lane herself. Early in Phares’s first semester as Lane’s student, Lane told Ph ares that another student, Fabiana, blamed La ne for her vocal injury. Lane said “that that was a big issue,”26 and “[s]he mentioned thatother students say things about her methods of teaching that aren’t true.” Lane told Phar es that “there was an air of gossip and that a lot of it . . . wasn’t true and it was based on students no t liking her.” When Phares came to her lesson from another class, Lane asked her “if anyone in that class said anything about her that day and mentioned to stay away from students in [another teacher’s] studio.” Phares talked to Fabiana, who said th at “there was an issue” and did not elaborate. Phares had a conversation with a fellow student of Lane’s named Barrett, who told her that Fa biana had told him that Lane had caused Fabiana a vocal injury. Barrett indicated Fabiana’s injury “was caused by what was going on in lessons and techniquesand various things,” th ough at the time of her deposition, Phares could no t remember the exact details of that conversation. Phares stated that she believed Barrett, who she knew was “v ery good friends with Fabiana.” Because she believed Barrett, she believed her statement that Lane had caused a stud ent a documented vocal injury was true when she made it. While still Lane’s student, Phares wrote two emails that were complimentary of Lane thatshe submitted to the chai r of the voice department, and Lane included one of these letters with her response to Phares’s TCPA motion. The letter a September 2014 em ail, was written soon after Phares began studying with Lane. She stated in the email t hat she was “happy to be surrounded by profe ssionals who recognize vocal issues early on and see that27 excellent treatment is provided as quick as possible,” and she thanked the chair for “providing and maintaining such a su pportive and healthy environment for your musicians.” She stated that faculty members at a program she had recently participated in were “excited that [she is] with a teacher he re who won’t push [her] into singing the Ring Cycle before [she is] ready, and a Music Department that supports ideal heal thy singing practices.” The September 2014 email, written soon after Phares began studying with Lane, does not show that Phares knew her statements about Lane causing vocal damage and vocal injury were untrue at the time she made them. In a letter Phares submitted to the ch air of the voice department in February 2016, which Lane included with her response to Phar es’s motion, Phares explained that she had written the September 2014 email at Lane’s request and that Lane told her what the letter should say and had Phares email he r the rough draft. She explained at her deposition that at the time she wrote the email, she believed she “was involved in h ealthy singing practices” and beli eved what she wrote at Lane’s direction was true. But later, from her own experience and from talking to Barrett, she came to believe otherwise. While Phares testified thatLane told her that the students talking about her made untrue accusations, Phares’s description of the context of Lane’s statements suggested a preo ccupation on Lane’s part with possible negative statements students and faculty might be making about her. In that context as described by Phares, Lane’s statements about Fabiana’s accusation do not look28 like evidence that Phares knew her statement was fals e when she made it, but like Phares’s opinion that Lane had tried to ma nage Phares’s opinion of her. Further, Phares testified that Barrett, Fabi ana’s close friend, gave her information about the cause ofFabiana’s injury, and she believe d him. Considering all this evidence together, Lane fa iled to make a prima facie showing that when Phares made the statements about Lane’s teaching methods, she knew they were false or that she showed a reckless disregard for the truth. See New Times , 146 S.W.3d at 162. 4. Phares’s statement that Lane di sparages UNT singers and faculty According to Lane, she me t her burden to show actual malice regarding Phares’s internet postings that Lane disparages UNT singers and faculty because Phares had no pers onal experience of Lane disparaging UNT singers and faculty. But Phares testified in her deposition that the basis for this statement was “personal expe rience and the different th ings [Lane] had said to [Phares] during lessons about others.” Phares even gave several examples of what she considered to be Lane disparaging UNT sin gers and faculty. She described Lane telling Phares, regardin g a student who had been given a particular role in a productio n, that the student “had no business singing that role and [that Lane] wasn’t sure why she was cast that way.” Lane “told [Phares] that a lot of faculty said things about her th at were untrue, and would ask me what they said,” and she told Phares that fa culty members “were ve ry unprofessional in regards to [Lane].” Phares also testified that Lane as ked her if another29 teacher, Carol Wilson, had been trying to re cruit Phares to Wilson’s studio, and told Phares “to be very careful and as ked [Phares] to remove Carol Wilson from . . . [her] orals committee.” Lane told Phares not to take any issues to the chair of the vocal department because “h e’s part of the problem.” While Lane might disagree that these alleged statements rise tothe level of “serious” disparagement, Phares’s deposition is eviden ce of Phares’s belief in the truth of her statement, formed from herpersonal experience, and a lack of actual malice on her part. Further, in the complaint Phares gave to the chair of th e vocal department regarding Lane, which Lane included with her response to the motion to dismiss, Phares stated that “Lane ha s mentioned specific lik es/dislikes about other students to me (Kong, Clai re, undergrads),” “Lane tal ks about other students in her studio to me,” and “L ane becomes suspicious when I befriend people outside of her studio.” Lane’s affidavit was the only eviden ce Lane presented to make a prima facie showing that Phares had no personal experience of Lane disparaging UNT singers and faculty and tocounter Phares’s deposition testimony and the statements in her complaint. In Lane’s affidavit, she addressed Phares’s online comments on the matter in a si ngle conclusory statemen t: “I do not disparage UNT singers and faculty me mbers in a serious way.” She did not elaborate and did not address or disput e the allegations Phares made in her deposition testimony or in her writt en complaint. The evidence did not make a prima facie30 showing that Phares knew her online co mment about Lane disparaging others was untrue or that she madethe comment with reckless disregard to its truth. Cf. Dolcefino v. Randolph , 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“Conclusory statements in affidavits are not proper as summary judgment proof if t here are no facts to support the conclusions.”). Lane therefore did not make a prim a facie showing of actual ma lice with respect to this statement. 5. Phares’s statement that Lane is distracted and not focused during lessons and is often on computers and cell phone while a student is singing in Lane’s studio sessions Regarding her posted comment that La ne is distracted and not focused during lessons and is o ften on computers and her cell phone, Phares acknowledged that her comment was base d on her own personal experience. She testified in her deposition that she based her comment on “situations [she] recalled and also verified in [her] voice lesson recordings and [her] voice lesson journal.” Lane would look at her ph one or computer during the lesson, sometimes while Phares was singing. Asked if Lane “was maybe just keeping time on her timer on her phone,” Phares responded, “I couldn’t pinpoint every single time, but—for example, one time she had to answer th e phone and it was something not related to a lesson.” Lane took the call while Phares was singing. In her affidavit, Phares stated that “dur ing many of my voice lessons with Lane, Lane was looking at her phone or co mputer and seemed distracted and unfocused.”31 Lane stated in her affidavit that she is “not often on computers or cellular devices while one of my students is sing ing in my studio sess ions.” (She did not address or deny the partof Phares’s comment contending that Lane was distracted and not focused during lessons.) However, Lane’s affidavit is not prima facie evidence about Phares’s belief about the truth of her statement. Lane’s single, conclusory statement does not deny that she was sometimes on her computer or ce ll phone during lesson s. She does not address Phares’s statement that during one ofher lessons, Lane took a phone call unrelated to the lesson. Lane’s affidavit states simply that she was not often on the phone or computer during lessons. Lane’s affidavit contains no facts supporting or explaining the statement and does nothin g to challenge the basis of Phares’s belief that the behavior Phares complain ed of not only happened, but happened often. Lane therefore did not establis h that Phares made the comment with actual malice. 6. Phares’s statement that Lanehas been on faculty probation Finally, Lane challenges Phares’s post ed statement that Lane has been on faculty probation by countering with her affidavit testimony th at “I have never been on faculty probation.” This is not evidence of Phares’s knowledge of its truthfulness. See Bose Corp. , 466 U.S. at 511, 104 S. Ct. at 1965 (“[T]here is a significant difference between proof of actual malice and mere proof of falsity.”). Phares’s affidavit and deposition, on the other hand, explain the basis of her belief for the comment. In Phares’s a ffidavit, she stated that her “belief and32 understanding is that Lane did not teach voice less ons because she was not allowed to teach voice lesson s prior to 2014.” While Phares did not know UNT’s reason for not allowing Lane to teach voic e lessons, she knew that Lane “was teaching other classes and was not on sa bbatical.” Phares did not have access to UNT records and could not verify if Lane had been on probation, but “the impression [Phares] was left with was that she had been.” In her deposition, Phares explained th at UNT’s website lists what courses professors have taught or are teaching, and when Phares look ed at the website, Lane was listed as having taught voice less on and voice studio in previous years, but not for the year immediately before P hares started at UNT. Phares believed that Lane was not on sabbatical, howeve r, because she taught other classes that year. Phares testified, “whe n a voice professor doesn’t te ach studio voice, it just made me wonder why an d wonder if there was a bigg er reason.” Phares spoke to another student, Julianna, about the issue, and Juliann a told Phares that Lane had not been allowed to teach voice that year because of “som e issues.” Phares could not remember if Ju lianna had expanded on what those “issues” were. Based on Lane being a voic e professor yet not teac hing voice classes and on Julianna’s statement that Lane had not be en allowed to teac h voice that year, Phares believed at the time she made her comment that Lane had been on probation for that year. Ph ares discussed her belief wi th another student, Farah, who agreed it “didn’t look good” that La ne, a voice professor, had not taught voice the previous year. As of the time of the deposition, Phares did not know if33 “probation” was the “official,” correct term , but she still believed that whatever the proper term for what happened, it wa s “something” that meant Lane had not been allowed to teach that year. A document listing classes Lane taug ht from 2011 to 2015, which Lane included as evidence with her response to Phares’s motion to dismiss, showed that Lane taught only voice classes in 2011, 2012, and spring of 2015. She taught both voice and “gradu ate diction” in fall 2014, but she did not teach voice in 2013. Instead, for the ac ademic year from fall 2013 to spring 2014, she taught “advanced vocal diction” and “vocal literature.” None of the record evidence makes a prima facie showing that Phares made her online comment about Lane being on faculty probation with knowledge that the comment was unt rue or with reckless disregard for the truth. Because Lane did not make a prima facie showing of actual malice for the challenged statements, we ov errule her second issue. VI. Conclusion Having overruled Lane’s two issues, we affirm the trial court’s order dismissing Lane’s claims agai nst Phares under the TCPA.34 /s/ Mark T. Pittman MARK T. PITTMAN JUSTICE PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ. DELIVERED: February 15, 2018