## In the Court of Appeals Second Appellate Di strict of Texas
at Fort Worth

___________________________

No. 02

- 20

- 00165

- CV

___________________________

On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 19

- 11600

- 393

Before Kerr, Bassel, and Wallach, JJ.
Memorandum Opini on by Ju stice Bassel 

### C ARLYE 

### J ONES 

### M ILLER



### , Appellant

V



### .

M ICHELLE 

### W ATKINS 

### , Appellee2 MEMORANDUM OPINION

I. Intr oduc tion

I n this a ccelerated appeal, Appellant Carlye J ones Miller raises two i ssues

challenging the trial court ’ s den ial of a moti on invoking the provi sions of the T e xas

Citizens P articipation Act ( the TC PA or the A ct) by which she sought to di s m iss

Appellee M ichelle Watkins ’ s sui t against her. Watkins ’ s suit alleged causes of action

against Miller f or defamation and tortious interference with actual and p r o spective

contra ct

. The suit alleged that Miller had made defamatory statement s to vario us

g overnmental and private individ uals when she challenged whether Watkin s should be

permitted to teach classes at a school where Miller ’ s daughter was a pupil.

Miller moved to dismiss Watkins ’ s suit claim ing that the statements that she

ma de wer e an exercise of righ ts p rotected by the TCPA . Watkins responded to the

motion by filing seve ral items of evidence that she argued established a prima facie

c ase for each ess ential element of the claims that she ha d b rought against Miller

. The

trial cour t found that Watkins had me t h er b urden to establish a prima facie showing

tha t her claims were meritorious a nd should not be dismissed.

W e conclude that th e trial court ’ s ru ling was correct. This opinion focuse s on

our co nclusion t hat Watkins presente d p rima facie proof est ab lishi ng t he elements of

her defamat ion claim. Because this conclusion is dispositi ve , we do not address

whether Miller properly invok ed the TCPA. Also, we do no t address whe ther

Watkins pr es ented pri ma facie proof o f her tortious

- interference cla i m becau se tha t3 appellate contention wa s waived by Miller due to being inadequately briefed. W e also

overrule Miller ’ s contention that Watki ns lacked standing to bring her suit because she

failed to comply w i th the T e xas Defamation Mitig ation Act and tha t the tr ial co urt

should have con sidered Watkins ’ s request f or injunctive relief to be a discre te legal

ac tion that is subject to dismissal un der the TC PA.

II. Background

A. Factual backg r ound

To se t the s cen e for the part ies ’ dispute , Miller and Watkins each have

d a ughters wh o attend the s am e elementary school, are i n the same grade, and are

friends

. Mille r and Watkins we re both active in the p arent

– teacher o rganization

(PTO) of the s chool t hat their daughte r s attend ed. Wat kins was on e o f t he pare nts

who taugh t a PTO

- spon sored art clas s called Meet the Ma s ters and was also qualifi ed

as a substitute te ache r fo r the school

. It is apparent from the reco rd that Miller and

Watkins ha ve a h istory of conflic t.

T he co ntroversy that led to Watkins ’ s suit a gainst Miller was sp arked by an

electronic m e ssage that Watkins sent her ex

- husband

, with whom she s hared cu stody

of her dau ghter. Th e message o bjected to the i r dau gh ter ’ s spe nding time in Miller ’ s

ho me

. The messa g e claime d

, among ot her thi ngs , tha t th ere had been “ a number of

incidents at the school invo lving that family that [were] co ncerning, ” that a p olice

re port had been filed ag ainst Miller for h arassment
, an d that the y (presumabl y

members o f the Mi ller fam il y

) had dis par aged Wat kin s ’s ex

- husband.4 T he m e ss age was passed to Miller. The receipt of the message produced

s everal action s by Miller . She st at ed her views a bout Watkins on F ac ebook, text ed

an d telephone d other parents who were also i n c ontact w ith Wat k ins, and contacted

the princip al of t he sc hool that Watkins ’ s an d Miller ’ s daughters attended. W hat

Miller said is document ed in the record , which include s copies of h er texts a nd

Facebook posts and copies of her emails and other communi c ati ons with the s chool.

These docu ments beca me part of the record beca use other parents who texted with

Miller or were frie nds w ith her on Facebo ok attached copies of the texts and po st s to

decl aration s that Wa tkins filed in support of her response to M i lle r ’ s TCPA motio n to

dism i ss. A business

- reco rd s affi davit from the school district ’ s cus todian of records

attac hed the communications that Miller had with the princi p al of the e lementary

school and al so with oth er s chool distri ct officials

. The atta ch ments to the busin e ss

record s affidavit total 229 pages and span communications over a four

- month

perio d

. 1 Further, the other parents outlined in their decl arations what Miller had

alleg edly sai d about W atkins during telephone conversations

.

Below

, we will outline the stat e ment s that Miller allegedly made about Watkins.

To g ive c ontext to some of the stat ements , we note t hat Watkins c o ncedes th at

c ertain statements that Mil ler made about her past are true. Watkins acknowledged

1 A s w e disc uss bel ow , Miller re i ter ates on appeal th e var ious objection s that s he
made to th e de clarations th at Wa tkins filed ( tho ugh we conclu de her arguments are waived). S h e does not argue on appeal that the tri a l court erre d by failing to sustain

o bjec tion s that she made to the contents of and at tachment s t o the school di strict ’ s business

- re cords aff idavit

.5 tha t she had been arrested for public intoxic a tion ten years pr ior to the suit

. M iller

al s o obt ained and p rovided to the school a ten

- year

- o ld reco rd of a C PS “ F amil y

T e am Plan

, ” which was ap parently at least partially prompted by t h e public

intoxication arrest and required supervised visitation for a period of time when

Watkins visit ed with he r chi ldren

.

Miller asserted that he r impetus fo r communica ting with the school’s pri nc i p al

ab out Watkins was “because [Watkins] actually substi tutes for the school and helps

with the art program [and because Mi ller] felt like this fi nally need ed to be addressed.”

During h er commu nication s wi th the scho ol, Miller made a host o f st a t ements about

Wa tki ns

. Thes e included the following :

• Though Miller did not think tha t Wat ki ns would harm Miller ’ s dau ghter,

Miller ’ s daughter fel t unsafe a round Watkins.

• Miller st at ed

, “ If she was just a cr azy pa rent slandering my name, I wou ldn ’ t be

ta l king t o you g uys right now [ ;] but she is employed at the school and she i s

around my children and I really don ’ t feel safe like we hav e been fo r all of these

years. ”

• Miller claimed that “ all you ha ve to do i s tal k to enough peopl e t o know that

there is som ething ps yc hologic ally wrong with [Watkins

, ] ” but Mille r would not

provide names because she did not want others dr a g g ed into the cont r o versy

.6 • Watkins had “ CPS cha rges including child end angerment and publi c

intoxication

, ” and M iller obtai n ed cop ies of re cords “ to ensure Ms. Watkins

[was] no longer allow ed on campus. ”

• “ Watkins ha [ d ] been to a mental hospital and was instit u tiona lized

. . . . ”

• Mi ller obtain ed public records “ to sho w that W atkins should not be a t sch ool. ”

• W atkins i s “ adul t bullying at i t s fine st. ”

• Miller plan ned to contact CPS to communicate about the email that Watkins

had w r itten t o her ex

- husband.

• The police told Watkins to stop “ fol lowing” Miller.

• Ac cording to Mil ler

, “ [t] he p sychol og ical abuse on [Watkins ’ s] kids by

[Watkins] is sickening. ”

• Miller had proof that Watkins had been stalking her on social m edia

, allegedly

confirme d by Mil l er ’ s conv ers ation w ith Watki n s ’ s so n

.

• Miller kn ew o f no instan ces of Watkins ’ s m isconduct that had occurr ed at the

school ; but Watkins volunteered a t the sch ool

, an d Watkins ’ s e fforts to slande r

Miller had to stop

.

• Miller stated that she had “ t alked to [ the ] local police depa r tment ” and tha t

they were going to set u p a me eting for her with an investigator

, “ but they s ai d

[Miller] should go a head and talk to the school to see if [the school was] going

to do s o met hi ng. ”7 • Mi ller reported that she had

[ j ] ust finished with th e investigator. He wi ll be contacting [Watki ns ] to
stop harassing me a nd saying things that aren ’ t tr ue and se arching m y social medi a

. . . . T he investigator is also going to con tact the I S D police

t o let them k now what’ s going on because even though sh e hasn ’ t done anyth ing a t the school th at we kn ow of ( othe r than negatively affect the
kids [ ’ ] friendship ) [,] they need to be a ware that she ’ s been told to stop.

• Miller’s da u ghter w as excluded from activiti es because o f the actions of “ an evil

m other. That is BULLYI N G. ”

• Wa tkin s ’ s chil d “ is afrai d of her mother

. ” Watkins punishes her dau ghter for

associ ating with Mil l er ’ s daughter

, and “ [ t ] his is sic k behavio r

. ”

• “ Th is situation has gott en out of ha nd and goes be yond t he harassment that

we ’ ve bee n deal ing wit h for the last f ew y e ars. A parent involved at the school

is FORCING he r child to exclude her best friend [

— ] all for her own evil

ag end a. ”

• Wat kins ha d “ p ublic intoxica tion [,] among other things [,] on her re co rd [,] ” and

Miller fo rbade Watkins to be anywhe re near her d aughter.

• M iller asked t he school t o “ keep [Watki ns ] away f rom [Miller ’ s daughter]

an ytime [Watkins was ] a t the sch o ol vo lunteering

. ”

• Miller stated that she had “ to involve CPS now becaus e [Watkins] should not

be arou nd my c hild ever . There is no reason that childr e n should be h iding

s cared at the school that they attend because of a horri ble volunteer mo the r

. ”8 • “ Ho w hard is it to get th e one person hur ting EVERYONE [] out of the

schoo l? At leas t [ for ] the remaind e r of this year. ”

• “ W at kins is BULLYING my fa mily AND he r ow n dau ghter. ”

• “ W hat you guys did , b y excluding my child instead o f re m oving the bully is

very disturbing. ”

• Miller “ found out that [ she was] not able to get [ Watkins ’ s ] [ c ] hi ld

enda ngerment records or the rec o rds of her being in a ment al hospital [,] b ut

her ex

- hus band [wa s ] in the process of d o in g that becau se she ’ s c aus i n g so

m any problems for them as well. ”

• “ [Watkin s ] has to stay away f rom th e scho ol until my child is gone. ”

• Miller stated that she had “ contacted our police departmen t AGAIN

, and

they ’ re in the process of getting a n email toget her sta t i ng that [] Watkins is

slande ring my name by saying that I have ch a rges a gain st me. N ot only is she

hur tin g my child , she ’ s hur ting her own child and maki ng it HEL L for me

when it comes to vo lunteering at my kids [ ’ ] school. T his is all ILLEGAL wh at

she i s do ing [,] and you guys aren ’ t taki ng it seriously. ”

• Mill e r provided note s from the local police dep artment
, whic h described the

interaction that both Miller and Watkins had with po lice. The notes also state d,

I , M. Dusek #406, met with Car lye M ille r, a white female of Krugerville,
Texas. She had spoken with O fficer Bray #416 on 10

- 24

- 19 regarding a potential harassment issue between her and Michelle Watkins, a teacher at Brockett Middle School involving bot h of their daughters

. . . . I9 a dvis e d he r th e best way to quash the issue was to deactivate her
Faceboo k page as Watkins was likely usin g friends of friends to back door into her page. Miller had also spoken with [the] Principal [] at
Brockett [,] and [ t h e Principal ] agreed to keep Watki ns a w ay f rom [ Mill er ’ s daughter ] while at school; sh e would not allow Wa tkins to teach [ her daughter ] ’ s class. Miller stated that the common element in the
harassment is

. . . the biological father of [Watkin s ’s daughter] and ex

husband of Michelle Watkins

. I n con clusion, Miller was advised that posts on social media ar e view ed as an extension of the First Amendment right to freedom of speech and that a criminal offense may not be applicable in this case. However, I also advised her that Michelle
Watkins woul d be advised to cease her stalking of Miller online and throug h soci al media. I contacted Aubrey IS D Police Chief Collins to
advise Watkins of the issue at h and and to notify her in person to refrain from stalking, h a rassing, or impersonating Miller.

. . .

I, Officer B. Bray #416, spoke with Carlye Miller of Krugerv ille, regarding an ongoing issue with Michelle Watkins of Aubrey. Miller
stated that she believes that Watkins has been creating false Facebook profiles i n order to spy and send message [s] to other individuals to

“ slander ” Miller. Miller said that Watkins i s in a group of school parents
that “ just don ’ t like her [. ” ] I advised Miller of the law regarding o nline impersonation and that there could possibly b e a criminal charge if
Watkins has bee n usi ng information of another person to create the profiles and u si ng them with the intent to harm Miller. Miller has a scheduled meeting with the school, which both parties [ ’ ] children attend,
and [she] stated that after the meeting if nothing can b e wo rked out with the school and Watkins, she would gather any informati on and e vidence she has of Watkins using a fake profile to harm her and bring it to the
PD. I also advised he r that slander and defamation falls und e r Texas
civil code.

• Mill er e mailed t he school stating that she had an “ email where [Watkins was ]

sl and ering [Miller ’ s] n ame and saying that t he school ‘ knows about me ’ ” and

included an email a s “ proof from the police department that what she ’ s sa ying

[wa s ] false and flat out lies. Some one like th i s should not be volunteering at the

scho ol. Needs to stay a way fr om my child like I was to ld. ”10 • In another email to the school, Miller state d,

[Watkins ] is the bu lly here.

. . . Why is it not eno ugh that I have p roof
that she sto cks [ sic ] my social m edia and pro o f that she said I have a
h arassment c harge against me and I have the police d e partment say ing
that that ’ s a lie . How can she continue t o torment t hese two c hildren at the school?

• “ A volunteer a t the sc h ool cannot make up lies about anot her p are nt when the

police depar tme nt [ wa s] sayi ng [that] her words [wer e ] not true. ”

• “ W atkins will continue to harass and hu rt me and my family. ”

• When Miller provided th e school a CP S report dated more t ha n ten years

b ef o re the present c on tr oversy , she characterized it as follows : “ This is the

CPS meeting showing everyone on the f irst pag e that has f irst [

- ] hand

knowledge of [Wat kins ’ s] arr est for Public Int oxicati on. It show s that s he

could on ly have su per vis ion with he r own children an d al so that she had a dru g

and alcohol problem that caused an i ntervent ion .”

• Miller al so provi ded the scho ol with a copy of a mug shot of Watkins as

d oc umentation of her arr est for pub lic int oxication and accom pa nied what she

sent with an e mail s tati ng that

Y el low line 3 is her public intoxication arr est from M arch 28, 20 10. This
is her [ ] mug shot from ja il. I am doi ng this because I have been told she
is taking me to cour t. Having all the de tails are im por tan t. S he attacked

me F IR ST. I am only d o ing this bec ause facts h ave to be shown.

• “ Even though [Watkins ’ s] arrest and CP S involvement happ ened many years

ago , sh e is PRESE NTLY hurting my family , M O STLY m y ch ild [.] F or a11 school that sho ut s a n o [

- ] bu llying policy [,] I ’ m deep ly dist urb ed t hat two kids

have talked to the school with the same story and n othing is being done. ”

• “ All she d oes is LIE

. ”

• “ Y ou all nee d to b e aware that you have sided with an evil liar so now many

more peop le are going to have to go throu gh this unn ecessary court

app ea ra nc e. ”

• “ Watkins ( a pare nt and volunteer ) has b een sta l ki n g/h arassin g me for yea r s. ”

• “ My ch ild no l o nge r feels safe a t the school not only b ecause of [] Wa tkins.

Mi ll er al so provided the schoo l with document s from the local pol ice

departme nt tha t de tail ed her contacts with them . Specifically, she provid ed a letter

from a n investiga tor that she claimed proved that she had not filed c riminal charges

ag ainst Watkins, b ut th e letter also indicated t hat she had repo rted potential cr imin al

condu ct. S peci fica lly, the letter stated that

[a] s of this date , Janua ry 9 , 2020, Carly e Miller has not filed a pol ice
report a gainst Michelle Watkins w ith the [police department]. Ca rlye
Mill er ha d been in co ntact with officers of t he [police dep artm ent] to
descri be a pot ential criminal offense and request insight a s to he r options moving f orward; however, no police report or criminal charges
have

. . . b een filed and are not being c on sidered a t this time.

Immediately afte r Watkins file d suit, Miller i nitiated an appe al p rocess with the

school district of th e school that Watkins ’ s and Miller’s daughter s attended. T he

school

- district appeal had t wo bases. First, Miller clai med that the school’s pr incipal

had lied about st atements her daug hter h ad mad e to the sch oo l

. S eco nd, Miller12 claimed that it was not un til after the school offici als had lied that she sought to ha ve

Watkins removed as a volun teer a t the school. The s choo l district denied the appeal

and observed tha t a numbe r of s tatement s made by Mi ller that s ough t to exclude

Watkins from volu nteering at the school pred ated the events that she claimed were

her motivation for having Watkins excluded.

A s note d a bove, t wo parents of children atte nding the sc hool att ended by

M ille r ’ s an d Watkins ’ s daughters sw ore t o de c lar ations that Wa tkins fil ed to esta b lish a

pr i ma fac i e case of her claims against Mil ler. O ne of the paren ts itemized th e

sta teme n ts t hat Miller ha d made as follows :

B etween the text messages a nd the p hone c alls , Ca rlye M iller made the following sta teme nt s about Mich elle Watkins:

a) that [Wat kins] had removed everything out of her daughter ’ s room and forced h er to sleep on the floo r as punishment fo r associating
with C arlye Miller ’ s daughter;

b) that [Watki ns ’ s] da ughter didn ’ t want to live with [W atki ns ] ;

c ) that [Watk ins] does n ’ t nee d to be at Brockett Elementary School;

d) that [Watkins] has a criminal r ecord and [a] CPS record tha t
pre c ludes h er from being at the school;

e) that it is unsafe fo r c hil dren to be arou nd [ Watkins] , including [Wa tkin s ’ s] o wn childre n;

f) that [Watkins ] stalked h er ex [

- ] husband ’ s house when their
children [were] in his possess ion;13 g) that [Watkins ha d ] stalk [ed] Car lye Mi l ler on Faceboo k and [ ha d] create [d] fake prof i les to “ friend ” Carlye M iller so [that] she [c ould ]

t r oll her [on] s oci al media;

h) that [ Watkins ] is uns table;

i ) t h at [Wat kins] should not have her position a t the school
because she is not safe; [ and ]

j) that Carlye Miller is worried fo r the safety of [Watki ns ’ s]
da ughter be cause [Watkins] is no t st able

.

The ot her par en t stated i n her de claration that

[b] etween the text message s and the p h one calls, Carlye Mill e r made the following statemen ts ab out Michelle Watkins to me:

a) that [Watkins] w as not fit t o be at the school;

b) that [Watkins] w as abu sive to child ren;

c) that [Watkin s] abu ses her ow n child;

d) that [Watkins] is a troub le maker;

e ) th at [Watkins] is dang e ro us;

f) that [Watk ins] should be re moved as the teacher for Meet the

M a sters;

g) tha t [Watkins had ] stalk [ed] Carlye Miller on F aceb ook a nd [ had] crea te [d] fake profile s to “ fri end ” Carlye M iller so [that] s he [could]
troll her [on ] social media; [ and ]

h

) th at [Watkins] is unstable.

Wa tkins also filed her own declar ation

, detaili ng the s tate ment s that she

contend s that Miller had mad e about he r and declaring tha t the statements a re fal s e:14 Beginning i n August 2 019 and continu ing to this d ate, Car lye Miller h as made false claims about me and continues to send these fal se cla ims to

o thers. I am awar e that she has made at least t he f ollo wi ng false claim s about me:

a) that I took everythin g out of my dau ghter ’ s ro om and forced
h er to sleep on the f l oor of her bedroom a s a punishment for being friends with Carlye Miller ’ s daugh ter;

b) that my daughter doesn ’ t want to live w ith me any long er ;

c) tha t I do n ’ t nee d to be and shouldn ’ t be at B rockett Element ary any lo nger;

d) that children are not safe around me;

e ) that I stalk Carlye Miller;

f) that I stalk my ex

- husban d;

g) that I am unstable;

h) that I am insane and mental;

i) t hat I bully chi ldren at Bro c kett E lementa ry School;

j) t hat I stalk Carlye Mil ler on Fac ebook an d make fake profil es so that I can “ fr i en d ” Carlye Miller and watch her social media;

k) that I hav e a crim inal record that preclude s me from rema ining

as a t each er for Aubr ey ISD or a v olunt e er teache r for Brockett Elementary School;

l ) that I h ave a CP S record that prec lud es me f rom remaini n g as a teacher for Aubrey ISD or a volunteer teacher f or Bro ckett El ementary School;

m) that I should not have my p osi tion a t Brocket t Elementary
S choo l because I am not safe;

n) that I am not fit to be at a school ;15 o) that I am dan ge rous;

p) that I am a busive to children;

q) that I have abused my own ch ildren ;

r) th at I am a “ trouble maker ” ;

s) that I am a l iar ;

t ) t h at I am not allowed to teach a t Brock ett Elementary S chool;

u) that an investigat or with th e police has told me t o st op stalkin g/hara ssing Carlye Miller or others;

v) that I should have m y ow n childr en removed from my custody;

w) t hat I took che er a way f r om her;

x) that I have bee n hu r ting C arlye Miller and her children for

years;

y) that I h ar ass and slander Car lye Mil ler;

z) th at I lie ab o ut her to others;

aa) that I am an evil mo ther;

b b) tha t I have bullied her daughter, Carlye Miller he rsel f [,] a nd
her wh ole family;

cc) t hat I am hur t ing EV ERYONE a nd BULLYING Carlye
Miller and her d au ghter an d family;

dd ) that I inter fered with the “ cheer situation ” ;

ee) that the police told [Mill er] that w hat I say is not true, that I speak lies an d slan der [ ,] and [th a t I] have sta lked [Miller] for years.16 Both of t he other parents who si gned declarations stat ed that the matters they

had described were brough t to their a ttention by Mille r and no t Watkins. The parents

also stated that “C a rlye Mill er t old me that sh e was going afte r Michelle Wa tkins and

that if Michelle Watkins doesn ’ t stop, Carlye Miller was going to have to take this to

the next level.” O n e par ent also stated that in response to the parent’s statement

asking Miller t o ceas e making sta te m ents ab out pare nts on Fac ebo ok, Miller

r esponde d that she had the right to do so a nd that this was “ ho w [she] retaliate [s] .”

B. Pr oc edural backgr ound

In respo nse to Watkins ’ s suit, Miller filed a general denial and t hen her m otion

to dis miss u nder the TC P A. The exhi bits attached to th e mot ion to dismiss w ere a

copy of the div orce decree between Watkins and her ex

- husband and brief aff idavits

exec uted b y Miller and her husband. Miller ’ s affidavit stated that Watkins had

inapp ropriately in volve d Miller ’ s d aughter in disagreement s that Watkin s had with her

e x

- husband

, that Watki ns had har assed her, that W a tkins had created fake social

media accoun ts to s p y o n her

, that Miller had met with scho ol officials to discuss her

concerns , and that Watkins had never d iscusse d Mil ler ’ s concern w ith her but had

sued her without warn ing

. Miller’s decla ration also d escribed Watkins ’ s criminal

history

. W atkins respond ed with the declaratio n and evid ence we have outlined

abov e

. At th e time she filed h er response to Mille r ’s TCPA motion to dismiss,

Watkins also fi led a “ First Supplemen tal Original Petition ” that augmented the factual17 allegations of her ori g inall y filed petition by, among other things, explicitly pleading

Mille r’s alleg edly defamatory st atements that Watkin s catalo g ed in her declaration.

The trial court con ducted a hearing on the motion t o dismiss. The trial court

then ent ered a n order ru lin g on the obj ect ions that each party had filed to the othe r ’ s

e vidence and entere d an o rder den ying Miller ’ s motio n t o dismis s

. Th e trial court

made the f ollowing findings as set forth in the order denying Miller ’ s motion to

dismi ss:

1. [ Miller ] s atisfied h er burden of proof; the Texas Citi zens Particip ati on Act (TCPA), Tex. C iv. Prac. & Rem. Code §§ 27.001

– .011, appli es to th is cas e.

2. Whether [Watki ns] is a public figure for a limited purpose is a question of fact.

3. [Watk ins] has sati sfied her burde n of proof to proceed on her causes
of action f or defam ation and tortio us interference.

4. [Watkins] submitted s uf ficien t, adm issible [,] c lear and s pecific
evidence on each elem ent of her defamation and tortious [

- ] interf erence claims pursuant to Tex. Civ

. Prac. & Rem. Code § 27 .005( c) to ove rcome [Mi ller ’ s] Motion to Dismiss.

5

. Without finding wheth er [Wat kins] w as a pub lic fi gure for a lim ited

pur pose, the admissible evidence s ubmitted by [Watkins] was sufficient

to o vercom e the Mo tion to Dism iss even u nder the New York Times Co.
v. Sulli van , 376 U .S. [254] , 84 S. Ct . 710 (1964 ) heightened standard of

pr oof.

Mil le r t hen fi led a notice of appeal.18 III. Analysis

A. We set forth t he purpose and framewor k o f t he TCPA and the
standard s of analysis and review that we a pply

.

T he TCP A s tate s t hat its pur pose is “ to encourage and sa feguard the

con stitutiona l rights o f p e rs ons to pe t it

ion, speak freely, associate freel y, and

otherwise participate in g overnment t o th e maximu m extent permitted b y law and, at

the same time, protec t t he ri gh ts of a person to fi le merit orio us lawsuits for

demonstrable in jury. ” T ex . C i v . Pr ac

. & R e m

. C o de Ann

. § 27.002.

The A c t ’ s fr amework utiliz es a three

- step proce ss to resolv e wh ether a claim is

subject to the st ricture s of the T CP A and

, if so, wheth er the cl aim should be

dism issed or allowed t o proceed becaus e it appea rs to have merit. The th r ee st eps are

as follows : (1) th e p arty invoking the TC PA must demonstrate that a “ lega l acti on ”

has been brought against it that is “ based on or is in respons e to ” an exerc ise of the

ri ght s of free speech

, petition , or associatio n protected by the Act; ( 2) if the mo vi ng

party successful l y invokes the Ac t
, “ [t] he court may not dismiss a lega l acti on under

this section if the party bringing the legal action estab lishes by clea r and spec ifi c

ev idence a prima facie case for each essen t ial element of the cla im in qu estion [; ] ” and

(3) if the nonmoving party carries its burden

, the case m a y still b e dism issed “ i f the19 moving party e sta blishes an affirmative defense or o ther grou nds o n which th e

m oving party is entitled to ju dgme nt as a mat t er of law. ” Id. § 27. 00 5 (b)

– ( d). 2

In this appeal, we assume that Watkins ’ s suit was bro ug ht in respo nse to

Mi ller ’ s exercis e of rights protect ed by the TC PA. O u r f ocus is on the qu estion of

whether Watkins c arried her burden under the second s tep to p resent clear and

s pecific e videnc e t o est ablish a prima facie cause of action for de famation against

Mille r

. W e conclu de that Watkins did.

W e be g in our di scussion by describing the s pe c ialized b ody of l aw that h as

been created to define th e pri m a facie b urden a party respo ndi ng t o a TCPA motion

to dismiss bears

, to define the words u sed by the Act

, and t o explain th e Act ’ s

concep ts of proof . The s alient go verning principles are as foll ows :

• T o presen t “ clear and s pecif ic ” e vidence, the non movant “ mu st pr ovide

enough detail to show t he fac tual ba sis for its claim” and must provide

enough evidence “to support a ration al inf erence t hat the allegation of

f

a ct is true.” Dall. Morning News, In c. v. H all

, 579 S.W.3d 37 0, 377 (Tex.

2019)

.

2 W e do not deal with the t hird step in this case

. Mill er d id not plead, no r does she argue on appe al

, any affirmative defense of privilege to W atkins ’ s defa mation
claims. S ee Burbage v. Bu rbage , 447 S.W.3 d 249, 254 (Tex. 2 014) ( stati ng t hat a quali fie d

p rivileg e i s available as a n affirmat ive def ense when “c omm unication is ma de in good
faith and the author, the recipient or a third perso n, o r on e of t heir fa mily members,
has an interest t ha t is sufficient ly affected by the communicati on ” )

.20 • The words “ clear an d spe cific ” are defined to mean
, for th e forme r,

“ ‘unambiguous,’ ‘sure,’ or ‘f ree from doubt’ ” and, for the latter,

“ ‘ e xplic it’ or ‘ relating t o a parti cular named thing.’ ” I n re Lipsky

, 460

S.W .3d 5 79, 590 (T e x . 2 01 5 ) (orig. pr oceeding)

.

• “ The [ party respondi ng to a T CPA motion t o dismiss ] may re ly on

circumstantial evidence

— indirect evidenc e that cre ates an inference to

e stabli sh a cen tral fact

— unless ‘ th e connection between the fact and the

i n fer e nc e is too weak to be of help in de cidin g the case. ’ ” Dall. Morni ng

News

, 579 S.W.3 d at 377 (q uotin g Lips ky , 460 S.W.3d at 589 ).

• The non movant su rmounts it s burden o f establishi ng a p r ima fac ie case

when the ev idence presented i s “ sufficient as a ma t ter o f l aw to establis h

a given fa ct if it i s not rebutt ed or contrad ic ted. ” Lipsky , 46 0 S.W.3d at

5 90. S tat ed differently

, the burden is met by “ the ‘ minimum quan tum of

evi dence ne cessar y to sup port a r ational inf erence that the allegation of

fact is t r ue. ’ ” I d

. (quoting In r e E.I. DuPon t de Nemou rs & Co. , 136 S.W.3d

218, 223 (T ex. 200 4) (orig

. pr oceeding ) ).

• Statements t hat are conclusory or evidence that is speculative is not

su fficie nt t o ca rry the nonmovan t ’ s burden

. Mogged v. Lind amood

, No. 02

-

1 8

- 00 126

- C V

, 2020 WL 70 74390

, a t *9 (T e x. App

. — For t Wor th Dec

. 3

,

2020, pet. filed ) (en banc op. on r eh ’ g )

.21 O verall

, w e review a trial court ’ s den ial of a TCPA motion to dismiss de novo.

Robert B. James , DDS , I nc. v. Elkins , 553 S.W.3d 596, 603 (Tex. App.

— San Ant onio

2018, pet . deni ed). In rev iewin g a rul i ng o n a TCPA mot ion, “[w]e view the pleadings

an d e viden ce in th e light most favorable to the n onmovant.” Id

.

B. W e conclude that Watkins prese nted p rima fac ie proof on the
elements o f her defamation claim aga inst M iller.

1. The re are f our elements of de famation

.

Miller ’ s first issu e make s a v a riety of arg u ment s attacking th e tria l court’s denial

of her TC P A moti on to dismiss

. A s the parties do in their b riefs, we concentrate on

t he question of w hether Watkins p resen t ed prima facie pro of o n each element of her

defamation claim. The T e xas S u pr eme C o u rt rec e ntly stated the el ement s of

defamation as follows :

[A] plainti f f m ust show (1) the publ icatio n of a f alse statement of fact to a third pa rty [;] (2) that was defa matory concern i ng the pl aintiff [;] ( 3) with
the requi site degree of fault, at least amo unt i n g t o n e gligence [;] and (4

) damages, in some cases. A defama t or y statement is one that “tends [ ]
to ha rm the r epu tation of another as to lower him in the estimation of
th e co mmunity or to dete r third pe rsons from a ssoci ating or dealing with
him.”

Inn ovat iv e Bloc k of S. Tex., Ltd. v. Valley B uilders Supply, Inc. , 603 S.W.3d 409, 417 (Tex.

2020) (c itatio ns omitt ed).

In o rder f or a pa rt y responding to a TC PA m otion to dismi ss to make a prima

facie showing of the elements of defam ation

, the party ’ s ple adi ngs and evi d ence must22 establish “the facts of when, where, and wha t was said [;] the defamatory n ature of the

stat ements [;] and how they dam aged the plai ntiff.” Li ps k y , 460 S.W. 3d at 591

.

2. I n reviewing whe ther Watkins e stablished a pri m a fac ie
claim f or def amation, w e do n o t require prima facie proof that every statement allegedly made by Miller wa s def a matory

.

W e initial ly explain how we approach the revi ew of whe t he r Wat kins

established a p rima fac i e case of defamatio n

. As the Fourte enth Co u rt of A pp eals

recent l y explai ned, we are not required t o det ermine that each an d every statement

that M ill er ma d e is defam atory in or der to conclude that Watkins carr ied her bu rd en

to prove that she ha s a via ble cause of a ction for defamati on

. S ee S tone v. Mel il

lo

, N o

.

14

- 18

- 0 0971

- CV

, 2020 WL 614 3126, at *5 (Tex. App.

— Houston [14 th D ist.] Oct. 20,

2020 , no pe t.) (m em. o p.)

. In stead , the inquiry is w hether W atkins presented

suffi cient p roof to establis h a viable defamation cause of action

, and that task re quires

on ly t hat we d ete rmine whet her any of the st ate ments m ade by Miller were

defamatory

. A s the Four te enth C ou rt expla ined

,

While th e TCPA requi res tha t each legal c laim be a nalyz ed indiv idually,

t he TCPA does not requ i re that each factual basis or the ory of re cove ry

u nde r pin ning a cau se of acti on must be analyzed separately. Tex. Civ.
Prac. & Rem. Code § 27.00 5(c). Her e, Appellees hav e a single
defamati on cause of ac tion, w h ich is based u pon stat emen t s made by [Appellant ] in a flyer he publicly distributed a n d a sign he publ icly
di splayed. I f Appellee s are succ essful in presenting prima facie proof in

s upport of their defamation claim as to any of the statemen ts in the flye r

or si gn, then Appell e es will hav e met thei r burden under the second step.
See

. . . Bui [ v. Dang elas

, No. 01

- 18

- 01146

- C V ]

, 2019 WL 51 51410, at *5 [ (Tex. App.

— Houston [1st Dist.] Oct . 15, 2019, pet. denied) (mem. op.) ] ; see generally Landry ’ s, Inc. [ v. A nimal L egal Def. Fund ]

, 56 6 S.W.3d [ 41

, ]23 53

– 57 [ (Tex. App.

— Houston [14th Dist.] 2018, p et. gra nted ) ]. The
TCPA does no t require that Appellees produ ce evidence that each and

ever y sta tement in [Appel lant ’ s] flyer is de famatory to me e t t heir burden
und er t he TC PA [] or t o prove t heir cause of action at a tr ial on the
merits. Rathe r, Appell ee s mu st estab lish “a prima facie c ase for each

esse ntial element” of th eir defamation claim agains t [App ellant]

. Tex.
Civ . Prac. & R em. Code § 27.005(c).

I

d

. at *6. Thus, we will highlight certain of the statement s that Mille r made and why

w e conclude th at t hey were defamatory

. 3

3

. With regard to t he first element of defamat ion
, there is prima
facie proof that M iller publ ished a fals e statement of fact
about Watkins to a third part y

.

The principle s that gui de the determ ination of wh ether Watkins has e st abl i shed

pri m a facie proof o f the first element of her defamat ion claim are as follows :

• D id Miller make st atem ents of fa ct ? T h is de termination turns on whether t he

s tatements are v erifiable

. See D a ll . Morning News, Inc. v. Tatum , 554 S.W. 3d 614,

3 Much o f Mil ler ’ s brie f simply repeats ob jecti ons m ad e to the decla rat ion s that
Watkin s f i led in response to Mill er ’ s m otion to dismiss. The brief appears to mostly

cut an d paste fifty

- seven separate o b je ctions , which consume nineteen pages

. The object ions rely o n var i ous rul es of eviden ce but go no fu rt her than simply giv ing the
numb er o f th e rule w ithout furth er explanation of its terms or its application. F or example

, “ [Mil le r] objects to Michelle Watkins ’ s Declar ation, Paragr aph 1 3, und er Tex. R. E vid. 104(b), 401, 402, 60 2, and 611

. ” I n some of the objections, Mille r cite s

to par ti cular l anguag e i n the declaratio ns t o whic h she o bjects

, and in others

, she does

n ot. B as i cally , each of the objections r equir es us to deci pher which portion of the
cit ed ru le applies t o Mille r ’ s objection

, ana lyze how th at porti on impact s t h e o bjected

to portion of the declarat ions

, an d th e n dec ide how we should rul e on the argume nt s that we assume Mil ler i s making. Mi ller ’ s br ief waives error o n the declaration object ions by placin g t he burde n on u s to b rief, argue, and ass ume the bases of
Mil ler ’ s ar g ument. See Robins v. Clinkenbear d

, N o. 01

- 19

- 0005 9

- CV, 2020 WL 237943,
at * 8

– 11 (T ex. App.

— Houston [1st Dist.] Jan . 16, 2020, n o pet .) (mem. op.) (c onclud ing that variou s obj ections to a ffidavit s fi led in r esponse to TCPA motion to
dismiss we re w aived because of inadequate brie f ing ).24 639 (T ex . 20 18) ( “ If a statement is not verifiable as false, it is not defamatory.

Similarly, even when a state ment is ve r ifiable as false, it does not give rise to

liability i f the ‘ entire cont ext in which it was mad e ’ discloses that it is merely an

opin ion ma squera ding as a fact. (citations omitted) (citing Bentley v. Bunton , 94

S.W.3d 561, 58 1 (Tex. 20 02)) )

.

• Did M iller publis h the stat ements ? “ ‘ Public a tion ’ occurs if the defamatory

statem ents a re comm un icated or ally, i n writing, or in print to some th ird pers on

who is ‘ cap able of understanding their defama tory import an d in such a way

that the thir d person did so und erstand. ’ ” Exxo n Mobile C orp. v. Rin cones , 520

S .W. 3 d 572, 579 (Tex. 2 017)

.

• Wer e Mi lle r ’ s st atements fal se? We assume tha t Miller ’ s stat ements i nvolve d a

m att er of public concern and follow th e precedent of our court th at Watkins

b o re the burden to e s tablish the s tat eme nt s ’ falsi ty. See Van Der Linden v. Kh an ,

535 S.W.3d 179

, 199

– 2 00 (Tex

. App.

— For t Worth 2017, pet. denied) ( stating

that i n a sui t betw een a pr i vate plain tiff an d a private defendant

, the pla intiff

bor e t he burden to establ ish falsity because the stat em ents i nvolved a m atter of

public c oncern ).

A numb er of Mill er ’ s state me nt s w er e statemen t s of fa ct. He r stateme nt s tha t

Watkin s ha d cre ated false F a cebook profi les

, had stalked her , and had done t hin gs

—25 suc h as puni sh ing her d au ghter for associating with Miller ’ s d aughte r by mak ing the

child sle ep on the floor a fter removin g the f u rniture f r o m her ro om

— were verifia ble

.

Miller “ pu blis hed ” the s ta tem ent s. The record cont ains the declaration s of t wo

other pa re nts stating that Miller had re fe renced Watkin s and th a t they un derstood the

defamat ory conte nt of the statements

. Ce rta inly

, Mill er specifica lly identified Watkins

in her comm u nic ations to school o ff icials and to the police. Nothing suggests t ha t

t hose recipie n ts were incapable of under sta nd ing the p ot enti al de famat ory content of

Mille r ’ s state ments or could misconstrue t hat Mille r was making particular statem en t s

of misconduc t in volving Wa tkins.

Wi th respect to falsity, Watkins stated that she h ad not stalk e d Miller ’ s social

media ac counts or had abuse d her d au ghter in the way that Miller claims th at she did

in t he stateme nt s th at Mil ler made to third parties

. In essence, a t the TCPA moti on

t o

- dismis s stage of this case, thi s is a ca se of sh e said / she said in which one party

claims an event occurred

, an d th e other clai ms that it did not

. The n ature of the acts

is such tha t we d o not know what pr oof Watkins could be expected to p roduce at this

point i n order to present prima facie proof other than t o deny that the ac ts occurred

.

Miller prese nted no spec ific e videnc e to d ocument that Wat kins had created false

profiles to t r ol l he r on social me di a ; she simply asserted t hat Watkins had done so

. 4

W e are unsure how Watkins would prove the negative that she had n ot cre ated fa lse

4 The only u nst ruck record refe re nce to support th e “ trolling ” cl aim was some unspecified state ment al legedly mad e to Mi ller by Watkins ’ s son

. W e know nothin g about the age of t he son or what h e said

.26 social media accounts at this p oint i n the lit i gation when Miller ’ s stateme nt provid ed

no particulars o n ho w she had done so. Miller also claimed that Watkins ha d

punished her daug hter in a particular way , and Watk ins also pr ese nted pro o f that she

had not taken the actions that Miller claim ed regardi ng punis hing her daughter.

Our situation is simila r to t he on e we faced in Van Der Linden

, a c ase in which a

def end ant alleged ly said that a plaintiff had given money to a terror ist organi zat ion

,

and the plaintiff den ied that he had ma de the statement

. See id. at 198. W e n oted t hat

in a situatio n where there were only two part ies t o the communication, the plaintif f

could do no more th a n deny that he had made the stateme nt

. Id

. Here, as in Van Der

L

inden

, the clash between the statem en t th at an acti on occurred and the denia l that it

did is evid ence that the p er son making the s ta tement spoke falsel y.

4. With regard to t he seco nd element of defamation
, there is prima facie proof that Miller ’ s statements about Watkins

were reasonably c apable of a defa mato ry meani ng

.

Th e elementary qu estion i n establ ishin g that a statemen t is de famatory tur ns on

whether it “ten d s [ ] to harm the re putation of another as to lower him in the

estimati on of the communit y or to deter third persons from a ssoc iating or dealin g

w

ith him .” Innov ative Block

, 603 S.W.3d at 41 7 ( qu oting R es t atement ( S econd ) of T orts

§ 559 (A m . L aw I nst . 1977 ) ). W hether the st a tement is defa matory is a lega l question

.

Id . at 4 19

– 20

.

T o answe r whether a sta tement is reason ably c apab le of defama tory mea ning

poses two qu estions: (1) whe t her the m eaning tha t t he plaintiff as signs to the27 statements is reasonably ca p able of ari sin g f ro m t he tex t of which the pl ai ntiff

complains ; a nd (2) wh ether th e meaning ascri bed to the state ment b y the plaintiff

— if

th at meaning is reason ably ascribed to the statement

— is rea son ably capable of

defaming the plaintiff. Tatum

, 554 S.W

. 3d at 625.

Th e Texas S upreme C ourt recently est ablished new cat egor ies to add ress the se

question s an d abandone d

— othe r than for the p urpose of pres uming general

dam ages

— the long

- use d ca tegorie s o f def a mation per s e and per quod as descript ors

of whether a stat ement wa s defamato ry “ by it s text alone

. ” Id

. T he supreme court

e st ablished two b road ca tegori es of sta tements with t he disti nction s between t he two

turn ing on whether the face of statement carried a potentially defa matory sting o r

whe t h er that st ing coul d b e fou nd only if extrinsic evidence were in troduced to

explain i t. I d

. at 626

– 27

. The two c ategor ies were g iven la bels tha t correspond to

t heir ability to convey meaning with o r without t he resort to extrinsic evi dence, with

the category not requi ring extrin si c , e x planatory evide nce being textual defamation

and the o ne requiring e xtrinsic eviden ce bei n g extrins ic defa mation

. Id

.

A s a furt her break down

, t ext u al defamat ion c on tains two s ubclasses. T he first

is a n explicit textu al defamation. Id

. at 62 7

. E xp l icit textual defama tion needs no

int erpretive effo rt to d iscern the point that the de f endan t is makin g

. The su preme

co urt de scribed suc h a statement as being when the state ment ’ s “ literal text and its

co mmu nicative c ontent align

— what the stat ement says a n d what the statemen t28 communicates ar e the same. In other words, the defam ation is bo th tex tual and e xplicit

. ”

I

d

.

T h e se cond category of te xtual defamat ion is implic it te x tual defamation

. Id . at

627

– 28

. Th is category r equires interpretati on of the s ta teme nt

. Id . at 627. To

un e arth wh ether a statement car ries an implicit defa mator y meani ng , a judg e views the

statem ent from the perspec tive of a n “ objec tively r easona ble rea der [ who] internalizes

all of a publication ’ s re asonable implication s. ” Id . a t 6 3 1

. The co urt , viewing the

state m ent f rom such an observer ’ s perspective

, mus t par s e the statemen t and apply

the following tes t :

[I]f a com mun ication, v iewed in its en tire context , merely conveys
materiall y true facts fro m which a defamatory infer ence can reas onably
b e drawn, the li bel is not est abl ished

. But if the communication, by t h e par t icular man ner or language in which th e true facts a re conveyed, supplies addit ional, affir m ative evidence suggesting that the defend ant intends or endors es th e defama tory i nference , the communica tion will be
d eem ed ca p able of bearing that meani ng.

I

d

. a t 635.

I n this case, we need not g o th r ough the pro cess o f dr awing out an impl icit

meani ng from Miller ’ s statement s

. Th e statements that we focus on are t hat Watkin s

has created f alse profile s to acces s and then misuse her soc ial m e dia ac c ount and that

Watkins h as g one to t he length of puni shing her da u ghter for asso c iating wi th Miller ’ s

daughter by mo vi ng furniture out of her daughter ’ s room and forcing th e c h ild to

sleep on the f loor. Thes e sta tements are an explicit descri ption o f the conduct th at29 Miller claims W atkins has engaged in

, i

. e. , what th e statem ent says and wha t the

statement communicate s are the same

— Watk ins did certain specified acts

.

Ou r seco nd step i s to determine if Miller ’ s st atements were capable of a

def amator y meani ng . T he s upreme court offered the fo llo wing broad gui delines to

make th is deter mination :

I n Texas, a statement is defamatory libel by statute if it “tends to in j ure a li ving person ’ s reputation and t hereby expo se the person to public hatred, contem p t or r id icule, o r financial injury or to im pea ch any

person ’ s honesty, integri ty, virt ue, or rep u tation.” Tex . C iv . P rac . &
R em . C ode [Ann. ] § 73.001. In addition, under our s tat e ’ s commo n law,
a statement is defa ma tory per se when it is “so obvio usly h a rmful that

gener a l damages, such as mental anguish a nd loss of reputa tion, are

p resume d.” Lipsk y , 460 S.W. 3d at 596; see also Hancock [ v. V ari

yam ] , 400
S.W.3d [59,] 63 [Tex. 2 013 )]

. For e xample, “[a]c cusing som e one of a crime, of having a foul or loaths o me dis ease, or o f enga ging in serious

sex ual mis conduct” constitutes defamatio n per se

. Lipsky

, 460 S.W.3d at
5 96; see also Moore , 166 S. W. 3d at 384. Moreover, “[r]emarks tha t adv ersely r eflect on a per son ’ s fitn e ss to conduct his or her busine ss or

tra d e are also deeme d defa matory per se.” Lipsk y , 460 S.W.3d at 596.

Id . at 637

– 38.

R el e vant t o the fa cts we analyze, a n accusation of chil d abus e is an accusation

of a crim e an d

— to use outd ated parlance

— defa matory per se. See Lozano v. Lozano

,

983 S.W. 2 d 787, 793 (Tex. App.

— Houston [14th Dist.] 1998), aff ’ d in part, rev ’ d in part

on other gro unds

, 52 S .W.3d 1 41 (Tex. 200 1).

Further , in T e xa s , it is a cr ime to engage in online i mp er sonation

. See Tex.

Penal Code A nn. § 33.07 . The elements of the off ens e are a s follows :30 ( a) A p erson commits an offense if the per s on, without obtain in g the

ot her person ’ s consent and with the i ntent to h arm, defr a ud, int im idate,

or threaten any per son , use s the name or persona of anot he r person to:

(1) create a web page on a comm ercial socia l netw orking site or
other Internet w ebsite; or

(2) po st or s end one or more me ssages on or through a commerci al soci al net working si t e or ot her Internet w ebsi t e, o ther
tha n on or through a n elec tronic mail program or message board

prog r am.

I

d. § 33.07(a )

.

Th e two sta tements made by Miller that we focus on are reas onably c apable of

defami ng Watkins. To c laim that a parent go es to the length of making a child s leep

o n the f loor to punish the chil d for associating with another chil d me re l y beca use the

pare nt doe s not l ike the playmate ’ s parent would

, in our view, be an alleg at i on of

a bus e tha t could in vo lve bot h the police and CPS

. T he other p arent s who filed

d e clara tions st ated that Miller had characterized Watk ins as abusive and unsafe in the

treatment o f her daughter a nd that the daughter no longer wishe d to live with

Wa t kins. Acc ording to o ne of Miller ’ s emails, she needed to involv e CPS because

Watkins shou ld n o t be aro und children

. I ndeed, Miller ’ s brief argues that her

comments w e re mat ter s of publ ic con cern because t hey involved acts of abuse that

were repor table to au thoriti es

. 5 Also, Miller was open ab out making the allegatio ns

5 M iller ’s br ief cite s the following Family Cod e S e ction s :31 b ecause s he w anted Wat k ins ’ s presenc e remove d f rom the scho ol. Thus, the

statements had a dir ect im p ac t on Watkins ’ s a bility to be a substitute teacher.

Further, M il ler cla imed t ha t Wa tkin s h ad co mmitted acts that are a ccusation s of

the crime of onli ne impersonation

. Though Mi ller later tr ied to assert that sh e had

never filed a formal police report s pecifi cally ac cusi ng Wat kins of a crime , she sent a

police rep ort t o the school statin g th at she h ad told pol ice “that sh e believe [d] that

Watki ns ha [d] been creating false Faceboo k pro files in order to spy and send mes s ages

to other individuals to ‘ slande r ’ Mill er.” I n t he report that Miller shared with the

school, police sta ted t hat t hey had “ advised Miller of the law regardin g onl ine

impersonat ion and that there could poss ibly b e a c riminal char ge if Watkins ha [d]

been using information of anoth e r pers on to create profi les and using them with the

intent to harm Mille r. ” Mille r ma d e s imilar allegations to school of ficials a nd other

paren ts

. In essence , Miller published statement s tha t Watkin s had performed acts that

• Secti on 2 61 .001(1 ) (A) , which defin es a buse as “ mental or emotional injury to a

c h ild that results i n an observable and material impa irm en t in the child ’ s growth

, development, or psychologica l f unction ing ” ;

• S ec t ion 261. 001(5)(D) , which defines a “ [p] e rson r esponsi ble for a ch ild ’ s care, custody

, or welfare” as “ a person who traditionall y is res ponsible for a child ’ s

care, c ustody, or welf ar e , ” includ ing “ sch ool pers on nel or a volunteer at the
chil d ’ s scho ol ” ; and

• S ection 261.101( a) , which states t hat “ [a] p erson h aving cause to believe that a

c hil d ’ s physical or mental health or welfare h as been adverse ly affected by abuse or neglect by an y p erson sh all immed iately mak e a report as provided by
this subcha pt er. ”

T ex. Fam. Code A nn. §§ 261 .0 01( 1) (A)

, (5)(D), 26 1.101(a).32 potentially constitut e d a cr ime and the n provi ded the school with a repor t from p olice

that outli ned t he nature of t he a lleged criminal offense tha t m ight hav e been

com mitted based o n the acts t hat Miller had a ccused Wat ki ns of do ing. Such an

accusation is reasonably capable o f defa ming Watkin s

.

5

. With regard to t he third element of defamation
, there is prima faci e proof that Mi ller ac ted with the r equisite deg ree of fau l t.

The p arties d ispute what level of fault sh ould gauge wh ether M il ler acte d with a

requisite degree o f fault. Miller con tends th at Watkins was a limited

- purpose public

figure ; th us, Watkins carr ied th e bur den t o esta blish th at Miller acted w i th act ual

ma lice

. Wa tkins d isputes her status as a limit ed

- pu rpose pu blic figur e and argues t ha t

she was required t o pres ent pro o f on ly tha t Miller acted negligently. The trial court

resolved th e issue by f inding that Watkins ’ s status as a limited

- purpos e public fig ure

p resente d a question of fact and by stati ng th at “ [w] i th out finding wh e the r [Wat kins]

was a p ublic f igure for a limite d p ur p ose, the admissible evidence submitted by

[Watkins] was sufficient t o over com e the Motion to Dism iss even under the New York

Tim es Co. v. Sullivan

. . . hei ghtened standard o f proof. ”

We a d opt a sim ilar appr oach t o that of the tri al court and assume

, without

decid ing, that the hei ghtene d bu rden of proof of act ual ma lice applie s to Watkins ’ s

de famation claim . W e need not resolve the question of wha t burden appli es b ec ause

the re is pri ma f ac i e proo f that Mille r acte d with actual malice

.33 B eca us e we assume tha t Watkins bo re the burde n of p r esenting prima fac i e

proof that Miller act ed with act u al malice

, we will be su ccinct in de scribing the mare ’ s

n est of how court s d e cide what l evel o f fault o n the part of a def endant accused of

defamation must be pro ven. The Texa s Suprem e Court desc ribed h ow T e xas law has

evol ved on the issue in response t o h oldings from the United States Supre me Court as

f

ollows :

We have revised t he elements o f the defamat i o n caus e of action i n resp onse to the United States Supreme Court ’ s application of
constitu ti o nal pr i nciples to defamation claims. Before Sul livan

, . . . the defamation pl aintiff generally prevailed by pr oving the defendant published a state ment t hat d ef a m ed her unless the d efenda nt proved the

tr uth of the statement. Pie rr e N. Leval, The No

–

Money , N o

– F ault Libel Suit: Keep ing Sullivan in Its P rope r Place

, 101 H arv . L. R ev

. 1287, 1287 (1988). But the Suprem e Co urt held in Sullivan that freed om of

express i o n requ ires “bre athi ng spa ce,” and that if t he plaintiff is a pub lic
of ficial, she must prove the de fendant had actual mal ice. 376 U.S . at 27 2, 279

– 80, 8 4 S. Ct. [at 721, 726]

. The Cour t later held that public fig u res and limited [

- ] purpose public figure s must a lso pro ve actua l
mali ce, and that states may set the ir own level of fault for p rivate

p laintiff s. Gertz v. Robert Welch, Inc. , 418 U.S . 323, 3 45, 34 7, 94 S

. Ct. 2997, [ 3009

– 3010 ] ( 1974). The Court left the precis e s tandard of fault t o the states, a nd w e have c hosen a n eglige nc e standard for a private figu re seeking defamation da m a ges from a media defendant. WFAA

– TV, Inc.
v. McLemor e , 9 78 S.W.2 d 568, 571 (T ex. 1998); see also Gertz , 4 18 U.S. at 353, 94 S. Ct

. [at 3014 ] (B lackmun, J., concurring) ( “ [ T]he C ourt now cond it ions a libel ac tion by a private person upon a showing of negl igen ce , as contras ted with a showing of willful or reckles s d isregard.”) ; R estate ment (S econd) of Torts § 580B (1 977). In light of
these hol dings , to recover defamation d a m ages i n Texas, a pla i ntiff must prove the media defendant: (1) publ ished a stateme nt; (2 ) th at defam ed the plaintiff; (3) while
either actin g wit h actual mal ice (if the p laintiff was a public offic ial or public fi gure) or

n eglige nce (if the plaintiff wa s a pri v

ate individual) regar ding the tr uth of the

statement. McLemor e , 978 S.W.2d a t 571

.

Ne ely v. W ilson , 418 S. W.3d 52

, 61 ( T e x. 2013 ) (fo otnotes omitted) ( emphasi s added).34 The plainti ff

, who bears t he burden of proving actual ma lice

, f al ls into t hr ee

classes : public o fficia ls

, gene ral

- pur pose p ublic figures

, and public figures for a

limited pur pose. McLemore

, 9 78 S. W.2d at 571. No one co ntends that Watkins s hould

be c haracte rized as a gen eral

- purpose public figure , w hich requires a p erson to “ hav e

achieved such perv a sive f ame o r n otoriet y that they become public figures for all

purposes and in all contexts

. ” See La n e v. Phares , 544 S.W

. 3d 881, 8 86 (Tex. App.

—

Fort Wort h 2018, no pet.) ( quoting McLemore , 978 S.W.2d at 571 ). Instead

, t he

dispu te be lo w was whether Watk i ns is a lim ited

- purpo se pub lic figur e where a party

may hold public

- figure st atus “ for a limit ed rang e of issues surroun ding a particular

public co ntrovers y.” See i d

. Court s look to thr ee facto rs in deciding whethe r a pa r ty

s hould be characterized as a l i m ited

- p u r pos e public figure :

(1) the controversy at iss ue must be p ublic both in the sense th a t people are

discus sing it and tha t people o t he r than the immediate participants in the

controversy are likely to feel the im pa ct of its res olution;

(2) the p l ai nti f f mus t have more than a t rivial or tangential role in the

co ntr oversy; and

(3 ) the all eged defamation must be g ermane to the plaint iff ’ s p artici pation in

the controver sy.

Id

. at 887 (citing Ne ely , 418 S. W.3d at 70 ).35 Al so , a s s tated above

, a public offi c ia l m a y bea r the burden of proving act ual

mali ce. Neither party ad dresses w h ether th e fact t h at Watkins was a s ubstitute teacher

makes her a public off ic ial

. W e will not decide that question b ut wil l observe t hat

there is a nationwi de sp lit on the q uest i on o f whether a public

- school teacher is a

public off i cial

. 6

Again

, we sides tep the raft of i ssues required to decide whet her Wa tki ns is a

limited

- purpose public figure or a public offic ial by our holding th at the r e is p rima

facie pr oof that Miller a cted with a ctual malice

. To begin that dis cussion , we n ot e the

difficul t y in applying the actu al

- m alice st andard to our facts

. A s we ex plained, t he

6 A ri zo na, Connecticut, Ohio , Ok lahoma, Tennessee, a nd Washington hold that public

- school teachers are p ublic officials

. See Se wel l v. Brookb ank , 581 P.2 d 267, 270 (Ariz. Ct. App. 1978); Kelley v. Bonne y , 606 A.2d 693, 710 ( Conn. 1 992); Bowman v. Parma B d. of E d uc. , 542 N.E. 2d 663, 668 (O hio Ct. App. 1988) ; Johnston v. Cori nthian Television Corp. , 583 P.2d 1101, 1102 (Okla. 1978); Ca mpbell v. R obi nson , 955 S.W.2d 609, 611 (Tenn. Ct

. App. 1997) ; Cor bally v. Kennewick Sch . Dist

. , 973 P.2d 1074, 1 077 (Wash. Ct. App

. 19 99).

S tates that hold t he o pposite includ e California, Flor ida, Idaho, Mai n e , New York, and Vi rgini a. See Franklin v. L odge 1108, B ene volent & P rotective Order of Elks

, 1 59
Cal. Rptr. 13 1, 135 (Cal. Ct. App. 1979) ; Nodar v. Galbreat h , 462 So. 2d 803, 808 (Fla. 1984); Verity v. U SA T oday , 436 P.3 d 653, 663 (Idaho 2019); True v. L a d ner , 513 A.2d
257 , 264 (Me. 1986), supers ed ed by statut e o n other gr ounds as recogn ized in Gro s sman v. Richards , 722 A.2d 3 71, 373 (Me. 1 999); D ec v. Auburn Enlarged Sch. Dis t

. , 6 72 N.Y.S.2d 591, 593 (N.Y. App. Div. 1998 ); Richmond Newspa pers, Inc. v. Lipscomb , 362 S.E .2d 32,
3 7 (Va. 1 987).

A t le as t two Te xas int ermedi ate appellate cour ts have held that public

- s chool

te achers are not publi c of fic ials. See P oe v. San Antonio E xpress

- News Corp.

, 5 90 S.W.2d 537, 540 (Tex

. App.

— San Antonio 1 979 , writ ref ’ d n.r.e. ) (refusing to conclu de that a school t eacher is a publ ic offic ia l) ; Johnson v. S w. News pap ers Co rp

. , 855 S.W.2d 182, 18 6 (T e x. App.

— Amarill o 1993, writ denie d) ( “[W]e do not hold, and no Texas case has
he ld , that a school teacher is a public official.”). *36 act ual

- malice standard ’ s primary purpose is to pr otect media commentar y on m att ers

of pub l ic concern

.

He r e , w e d e a l with a controversy that began as a pri vate email sent by on e

parent to a co

- p arent add re ssing a parenting concern abou t thei r daughter

. That

p rivate communication was shared with a third party
, and the third pa rty viewed the

st atements i n th e pri v ate e m ail as justification for creating a public dispute tha t

invol ved oth er parents
, school of f icials

, and the po lice. The act ual

- malice standard

seems a poor fit for the dispute between Miller an d Watkins when that s tand ard is

calibr ated to d ea l with t h e me d i a

. See Cummins v. Bat World Sanctuary , No. 02

- 12

-

00285

- CV, 2 015 WL 1641144, at *2

– 9 (Tex

. App.

— Fort Worth A pr. 9, 2015, p et.

denied) (per curiam) (mem. op.) (describing the ev olution of the actu al

- malice

standard and stating that “[n]either the United State s Su p reme C ourt nor the Texas

Supreme Court has seen the need to adjust defamation law in light of th e cha ng es in

technology ”)

. Becau se the actual

- malice standard involves media behavior

, the

standard often involve s de te rmi nati ons of whether the investigati ve w o rk o f the media

was do ne in a way t hat reveals act ual m alice. Th es e sta nd ards prov ide little guida n ce

on what we have already de scribed a s a s he said / she said situation in w h ich Mi ller

claims that Watkins ha s abused he r daughter by making her sleep on t h e f l o or and has

“ trolled ” and has stalked Mil l e r ’ s social medi a ac counts and in whic h Watkins a sse r t s

that tho se claims are fals e. In this unique situation

, we conclude that the fac t th at the37 parties ’ stories are so at odds with each othe r p rovides e v iden c e supporting an

inf erenc e of actual malice

.

A s a beginn in g p oint , t o sa y th e standards g o ver ni ng th e actual

- malice

dete r mination are imprecise is an unde rstatement

. T he standa rds turn on the

subjective awar eness of the defend ant
, and an injurio u s mot i v e impacts the

de ter minat ion , tho ugh that motive is not de ter mina tive. The Ty l er Court of Ap peals

rece ntly explored the pa r ameters of the actual

- malice dete rmination as follows :

T o establish actual malice, a pl aintiff m ust show a defamato ry stateme n t

was published with eithe r kno wledge of its falsi ty or reckless d i sre gard
for its tr uth. Lipsky

, 4 60 S .W.3d at 593. Reckless d isr egard is a subjective standard, f ocusing on th e defen d a nt ’ s state of mind. Forbe s In c. v. Gra nada Biosciences, I nc. , 1 24 S

. W .3d 1 67, 171 (Tex. 2003) (citi ng Bentley

. . . , 94 S.W.3d [at] 5 91

. . . )

. Mere neg ligence is not en o ugh. Id

. “Rather, the p laintiff must establish ‘that t he defendant in fact

e nt ertained serious doubts as to t he truth of his publica tion,’ or had a

‘ h i gh d e gree of aware ness of .

. . [the] probable f alsity’ of the p ub li shed
informa tion .” Id . (quoti ng Harte

– H anks Commc ’ ns, Inc. v . Connaughton , 491 U.S. 657, 688, 109 S. Ct. 2 678, 26 9 6

. . . (1989)). The evide nce must be

v

iewed in its e ntirety. Campbel l [ v. C lark ] , 471 S.W.3d [615,] 629 [Tex.
A p p.

— Dallas 2015, no pet.) ]

. Further, “[a] defe ndant ’ s st ate of min d
‘can

— indee d, must usually

— b e proved b y circumstantial evid ence.’ ” Id

. (q uoting Bentley , 94 S.W.3d a t 59 1). Spe ci fically, the supreme court stat e d
the following:

A lac k of car e or an injurious motive in making a statement is not alone proof of ac tua l ma lice, but ca re and m otive are
factors to b e considered. An understandable misinterpretation of ambig uous facts d oe s not show actual malice, but i n h eren t ly improbable ass ertions and statements
made on information t h at is obviously d ubiou s may sho w

a ctu al m alice. A fai lure to investiga te fully i s not evidence
of act ual malice; a purposeful avoidanc e of th e tr ut h is.38 I

d

. (quoting Bentley , 94 S.W.3d a t 597 )

. In addition, t he supre me court stressed that proof of actu a l malice is not d efe ated by a d efe ndant ’ s s elf

serving protes tation of sincerity. Id

.

MediaOne, L.L.C. v. Henderso n , 592 S.W.3d 933, 9 4 2

– 43 ( Tex . Ap p.

— T yl er 2019, pet.

denied)

. A ctual m alic e must be establis hed by clear and convincing evidenc e. Bentl ey ,

94 S.W.3d at 5 96.

I n sear ch ing for guida nce to decide ho w the actual

- malice standard appl ies t o

our facts, we no te that th e Un it ed States S upre me Court in St. Amant v. Thompson held

t h at e v ide nce that a st ory has been fabricated may be evidence of ma lice

. 390 U.S.

72 7, 732, 88 S. C t. 132 3, 1326 (1968)

. The T e xas Supreme Court rel ied on the

following language f rom St. Ama nt when describing t he a ctual

- mal ice stand ard under

T e xas law :

T h e de f endant in a de famation action brought by a public official

ca nnot, however, aut omatica lly insu re a favorable verdict by tes tifyin g that he published w ith a belief that the stateme nts were true. The finder
of f act must determine whether the publicat i o n wa s indeed made in good fa ith. Professions of good faith will b e unlik ely to prov e persuas ive, f or example, where a story is fabricat ed by the defendant, is the produ ct of his imagi nation , or is based wholly on a n unverif ied anonymous telephone
call. N or w i ll they be like ly to prev ail when the publisher ’ s allegations

are so inherently improbabl e tha t o nly a reckless man would h ave put

t hem in circulation. L ikewise, rec klessness may be foun d where there

are o bvio us reason s to doubt the veracity of the i nfor m ant or the

accu r acy of his reports.

B entley , 94 S.W.3d at 59 6 (quoting St. Ama nt

, 390 U.S

. at 7 32 , 88 S. Ct. at 1326 )

( emp hasis add ed) ( footnotes omitte d )

.39 Though they a re not a pre cise analogy, cases d ea ling w it h all egations of sexual

assault p r o vide d some guidance on how to ap ply t h e actual

- malice st a ndard in a case

in which th e private parties ’ stories were dramatically opposed

. For exa mpl e, a federal

dist rict court in Kansa s dealt with a defamati on claim ba s ed on a Faceb ook pos t

acc using t he plain t i f

f of a rape that had occurre d in a priva te setting

. See Chas tain v.

Hodgdon

, 202 F

. S up p. 3d 1216, 1 22 1

– 22 (D. Kan. 2016) (mem. & order)

. The

plaintif f denied that the sexual assault h ad occurred

. Id

.

C

hast a i

n ex plained ho w the fact that the par t ies ’ stories wer e a t od d s preven ted

the dismissal o f the case f or a failure to provid e evidence of act ual mal ice as fo llow s:

Defendant stat es that plaintiff ca nnot provide e vidence that defend a nt knew the allegatio ns r egarding the s exu al assault o r attempted rape wer e fals e and t herefor e cannot show actua l mal ice. T he court finds
defenda nt ’ s arguments unp ersuasi ve. I n h er F acebook post, def endant stated that pla intiff sexuall y assaulted or at tem pted to rape her, goi ng into great de tail in her narra tive. Such recoun tin g f r om d ef endant ’ s p erspective neces sa rily requi res a lucid memory of the event as

ex per ienced by defe nda nt herself. Of cour se, if the event forming the basis of defendant ’ s acc usati on never occurred, as the court is require d to assume at this stage,

s

uch a f irst

- p erson narra tive would requ ire that def endant knew that the e vents were fals e b ecause she nece ssa ri ly never experien ced them. If defendant k new that the e vents were fal se, an d nonetheless wrot e t he detailed n arrative describing exactly how pla intif f [had ] sexually assaulted or attempted to r ape her when it actually never occur red, i t i s

ax iomatic that sh e w ro te the nar rative with actual malice [] or a ctual knowledg e that it was false.

Id

. ( em ph as is added)

. A s Ch astain also explained when d enyi ng a motion to

reconsider

, “because defendant a nd plaintiff we re the only two di rect ac tors in event s

that eit he r did or did not occur, pla intiff ’ s claim of falsity su pports both th a t the

statement was f al se and that defe nda nt necessari ly knew i t was f alse a t t he time she40 said it

— because, a ccording to him, it never o ccurred.” Ch astai n v. Ho dgdon

, No. 16

-

2087

, 2016 WL 51 0994 4, at *2 (D. Kan. Sept. 20, 2016) (mem. & order)

.

In R atner v. Kohler

, an other fede ra l c ourt dealt with a sim ilar fact pat tern a s tha t

in Chas tain

. Civ. No. 17

- 00542 HG

- KSC

, 2018 W L 1055528 (D. Haw. 2018) (order)

.

Ratne r highli ghted that it was operating

— a s are we

— outs ide the u sual ambit of a

journalis tic se tt ing. See id. at * 8

. A s R at

ner explained

,

This case is not a defamation case a g a ins t a publisher or a journalist
inves t igating even ts about third parties. Rather, the Com plaint her e

a lleges that Defe ndant Kohler knew her Faceboo k post wa s false whe n she publishe d it b ec ause the e ve nts she recoun te d never took place.
Plaintiff Ratn e r a l le ges that Defendant ’ s Facebook post was wholly
f

abri cated.

I

d

. R a t

ne r held th at a dis pute regard in g wh e ther an event had occurred was evidence

of fabric ation and relied on Califor nia authority o f s imilar import to the language we

quoted from the T e x a s S up reme Court ’ s Ben tley opinion where the C alifornia co urt s

hel d “ that a ctual mal ice may be inferred i f th e plaint iff de mo nstrates that the

defamato ry stat ement had no basis in fact, wa s fabricated b y the defendant, or was the

product of her imaginatio n

. ” Id

. at *9.

He re, Watkin s denie d that she had stalked M il ler on Facebook an d ha d ma d e

fa ke pr ofile s s o t hat she could “ frie nd ” Miller and watch her social m edia

. Later in

he r declarat ion

, Watkins s ta ted

, “ I never cre ated fa ke soci al media ac c ount s for any

reason

. I do not shar e [] Mille r ’ s post s. ” Watkins denied t h at she ha d taken

“ ever yth i ng out of [her] d aughter ’ s room and [had ] forced her to sleep on t he flo or of41 her bedroom as a punishme nt for b eing friends w it h [] Miller ’ s daug h ter. ” Watkins

at tach ed a phot o to her d eclar ation showing that her daughter ’ s room w as f urn ishe d

and asserted that the p hot o showed the stat e of the room at the time when Mi ll er had

accu sed Watkins of removing the fur n it ure

. Watkins ’ s de c lara ti on stated that Miller

kn e w that the cla i ms that s h e had made against Watk ins w ere “ fa ls e an d [were] kno wn

by [] Mil ler t o be false. ” 7

W a tkins also presented evidence of an injurious motive on Mill er ’ s part. A s we

have n oted, th e othe r pa r ents w ho filed declarations stated that Miller had said that

she w as “ going after ” W atk ins an d that sh e ha d u se d Fa cebook to “ retaliate ” a gainst

parents with whom she d isagreed

. Further

, Miller apparently made ef forts to ha ve

Watkins rem oved f r om t eaching th e art class in question and from the school

, but s he

tried t o retren ch by cla iming that sh e had do n e so only after the school had l i ed about

what her daughter had s aid. Th is is circumstantial evidence that Mil ler herself

7 The o nly stat ements t h at Miller made in her dec l arati on abou t wh at she

s us pected Watkins had done w ere as follow s :

I susp ect ed th a t M iche lle Watkins created a fa ke s oc i al media account to

spy on me because Mi ch ell e Wa tkins sent pho tos of my Facebook profile to others. I questioned whether M ichelle Watkins ’ s beha vior w as

a cri me because it di d not seem right. I ask ed the lo cal polic e d ep ar tment what t he law was [,] but t he y referred me to Aubrey ISD’s complaint pro ce ss.

W atk ins object ed to t his paragraph

, and th e trial court sustained the obj ection

. Miller

r ai se s no is sue on ap pe al that the tr ial court e rre d by s ust ain i n g the objec tion.42 apparently fear ed ho w her statements and actions might throw her motive into

question

.

T o determine if th ere is prima f a c ie pr o o f of actual m alic e, we loo k to

circu m stantial eviden ce of whether from a s u bje c tive viewpoint

, “ the defendant in

fact entertained serious doubts as t o the truth o f his publi c ation, [] or had a [] hig h

degree of awa reness of .

. . [the] proba ble falsity [] o f the p ub l i shed info rmation.”

MediaOne

, 592 S.W.3d at 942

– 43

. Her e , one private p ar t y claim s that acts occurred

,

the other priv ate party denie s t h a t t h e s a m e a c t s o c c u r r e d

. T h e event s here occu rre d

in cir cumstances un like those that tradi tiona lly involve actual m alice wh e r e the bas i s

for a j ournalistic cla i m can be tested. I n essence , eac h on e claims th at the other is

l yin g , and we have no m e ans to d eci de who speaks the truth

. I f Mi ller indeed

fa bricated her allegations , then she by definition enterta ine d se riou s doubts a bout

th em and had a hig h degre e o f awareness of t he statements’ falsity

.

Further, thou gh an injurious moti ve i s not determinativ e of actu al malice , it is a

fa ctor t hat may b e con sidered . Here, M iller ’ s words and actions create an infe renc e of

a n in juri ous motive. Miller ’ s i re that W a tkins had made the statements about her

( although the st at ements were ma de to t h e limited a udience o f Watki ns ’ s ex

- husband)

i s o bvio us

. Her wo rds w ere that she was going after Watkins and that her social

media pos t s were a method of retaliation

. This evi de nce raises an inference of an

injurious motive and in combi nation with the other ev idence is rel ev ant to Miller ’ s43 su bjectiv e b elie f regarding whet her her statements were true . The rec ord supports an

inferenc e tha t Miller acted w ith actual m alice.

6

. With rega rd to t he fourth element of defamation
, there is

pr ima f a cie proof that Wa tkins has suffered d amage s

.

Because the s t atemen t s b y M iller t hat w e conclud e a re defamatory constitute

defamation per se, it is pres umed tha t Wa tk ins h as suf fered general damage s . Even if

we could not rely on a presumption, W atkins p resented prima facie proof that she ha s

ex p er ienced mental an g uish.

As w e noted abov e , though th e terms have fallen out of favor in describing the

defam atory stin g of a st atem ent, the terms defam a tion per se and defamation per

quod remain viable in det e rmining whether the statement produce s a p r es umption of

damag e

. Tat um , 55 4 S.W. 3 d at 6 2 6.

The dis tinction between defamation p e r se and per qu od is as f ollows :

Hi storically , defa m ation per se ha s involved stat ements that are so obviously hurtful to a plaintiff ’ s reputation that the jury may pr es u me general damag e s, inc lu ding f or loss of rep utation a nd ment al anguish. A statement that inju r es a pe rson in he r office , professi on, or o ccupa tion is

t ypically classif ied as defamatory per se

. Defamation per quod is
defamation that is not actiona bl e pe r s e

.

Hancock

, 4 00 S.W .3 d at 6 3

– 64 (foo tnotes omitted). Again, “ [a ] ccusing someone of a

crime, o f ha ving a f o ul or loa thsome dise ase, or of en gaging i n seri ous sexual

misco nduct are examples of defamation per se.” Lipsky , 460 S.W.3d at 59 6

.44 The exi st en ce of defamat i on per s e per mits a pres umption of general damages

,

th ough th at presumption is sub ject to qual i f

ications de pendi ng on the contex t of the

stat em ent . A s the Tex as Supreme Court has explained

,

Actual or compensatory damages are intended to co mp ensat e a plai n tiff
f

or the injur y she incurred and include general d amages (which are non

econom ic d amages s u c h as for loss of repu tation or me ntal an g uish) and special dama ges (which are economic damages such as fo r lost income). Historically in Texas

, de famat ion per s e clai ms allo w the jury to presu me the existence of general d amages without proof of a ctual in j u ry. Ben tl ey

. . . , 94 S.W.3d [at] 6 0 4

. . . ; see also R estatement (S ec ond ) o f T orts § 621

cmt. a (1977). But the First Amendment requires co mp etent evi denc e to

su pp ort a n awa rd of actual o r compensatory damages w hen the speech is public or th e l e vel o f fau lt i s l ess than a ctual m alice

. See [ Time , In c. v. ]
F

irestone , 424 U.S. [448,] 459, 96 S. Ct. 958 [

, 968 ( 19 76 ) ] ; Gertz , 418 U.S.
at 349

– 5 0 , 94 S. Ct. [at 3012 ]

. Thus, the C onsti t ution o nly all ows juries to presume the existence of general d amages i n def amat ion per se ca ses where [] ( 1 ) the speech i s n ot public, o r (2) the p lainti ff proves actual
malic e. See Dun & Bradstreet [ , Inc. v. Green m o ss Build ers, I n c. ] , 4 72 U.S. [749, ] 761 , 105 S. Ct. 2939 [ , 2946 (1985) ] ; Gertz , 418 U.S. at 349

– 50, 9 4
S. Ct. [at 3012 ]

.

Hanc ock

, 4 00 S.W.3d at 65

– 66 (footnote omitted)

.

Also, p rima facie proof of a v ia ble defama tion per se claim frees t he party

respo n ding to a TC PA mo tion to dismiss f r om h a vi ng to present cl ear and specific

evidence of general damages

. Lip sky

, 460 S.W .3d at 596 ( “ P lead i ng and proof of

particular dama ge is not required to prevail on a claim of defamation per se, a nd thus

act ual da mage is not an essentia l element of th e claim t o whi c h the TCPA ’ s burden of

clear and specific evidence might app ly. ” ).

Her e , Miller ac cus ed Wa tkins of two potential crimes

— child abuse and online

impersonation. Further, Miller ’ s allegations

— that Wat k ins is a n ev il and vindi ctive45 mother as d e mo nstr at ed i n p art by he r abusive actions toward her own daughter

—

wo uld strike a t Wa tk ins ’ s abilit y to b e a substitute teache r and obvio usly were used by

Miller for that purp ose. Thus, we consider these statements to b e d e famatory per se.

F urth er, to th e e xten t that th e s tat eme n ts have a public component , we have also

already conc luded th a t Watk ins present e d prima facie proof that the st atements were

made with actual malice

. T hus, we c onclude tha t the presumption of gene r al d amages

free s Wa tkins fro m ha v

in g to p resen t prima fac i e p r oof of damages

.

Alternatively, i f we are wr ong i n appl yi ng the presumption o f gene ral dam ages ,

then we con clude that Watkins presented pri ma facia proof of men tal anguish.

Gener ally, “ [m] enta l anguish is only co m pensable if i t ca us es a ‘s ub st antial disruption

in .

. . dail y routine’ or ‘a h igh degree o f mental pa in and distress .’ ” Hanc ock

, 4 00

S.W.3d a t 68 ( quoting Parkway Co. v. Woodruff , 901 S .W.2d 4 34, 4 44 (Tex. 1995)). I n

essence, proof o f compensable me ntal a nguis h loo k s to t he degr ee of emoti on it

produces :

[I] n a suf ficiency review, we “must d i stinguis h bet ween shades a nd degrees of e motions,” such as “between disappointmen t and seve re disappointment, between embarrassment and wounded p ride, [an d ]
betw een anger and in d ig nati o n

. ” P ar

kway , 901 S.W.2d at 444. “We apply a traditional no

- evidence s t andard to a me nt al anguis h finding to
de termine whether t he record reveals any evi dence of a h igh degree of mental pain and distress that is mo r e than me re worry, anxiety, vexa t io n,

e mb a rr a s sm ent, or a nger.” A dams v. YMCA of San Antonio , 265 S.W.3d 915, 91 6

– 17 ( Tex. 2008 ) (quotat ion omitted).

Patel v. Hussain , 485 S.W.3d 153, 17 8 (Tex. Ap p.

— Hous to n [14th Dist.] 2016, no pet.).

B ut “ [ g

] enerali z ed, c onclus ory descri ptions of how an eve nt a ff e cted a pers on are46 in sufficient evidence on which to base mental ang uish d amages.” A nderson v. D urant

,

550 S.W.3d 605, 61 9 ( Tex. 2018) (quoting Serv. Corp. Int ’ l v. Guerra , 348 S.W.3d 221,

232 (Tex. 2 011) )

.

Watkins ’ s de clarat ion co n tain s mor e than con clu s ory and sup erficial

description s of the anguish that she claim s to have s u ffered a s show n b y the

following :

21. I love teac hing art. This past 2019

– 2020 school year was my second
year to do so and [was] my first year in charge of t he Me et t h e Mast ers Pro gr am at Bro ckett Element a ry. Be fore all of C arlye Miller ’ s act ion s that are a part of this lawsuit ha ppen ed, I would dress up like the artist
or from the time period to engage with the s tudents. After [Mil l er] did what she did ( and is conti n uing t o d o), I did not d r ess up as often.
When I did get dres sed up, I woul d get v ery anxious each time be fore I
knew Ms. Miller was goi ng to be at the school to help with her children ’ s classes. She had never h elped a s a parent volunteer in th e art roo m for

a l l the years I had ta ught the art pro g ram. I knew that sh e was saying
false th i ngs about me, and her presence in t he classroom was frightening
and intimid ating and extremely upsetting.

22. A few days af ter [Mill e r] made her Facebook post t hat is

a ttac he d t o Ke lly Casey ’ s decl aratio n in Exhibit 2, [Miller] was up at the

sc hool decor ating fo r an event

. I would have normally st ayed t o help with decorating (as I have done for almost every event), but I did not
f

eel c omf ortable. I said hello to my fr i ends a nd left

. The stre ss of
know ing [that] sh e could email th e schoo l [] or [that] I would have to talk
to the princip al about her “ dema nds ” was ca using me to be anxious [,] and my stomach wo uld often hurt. I felt uneas y going to the sc hool for

any reaso n in fe ar she might be th ere or sh ow up. I saw my regu lar
do ctor on 11/14/19 to dis cus s any opti ons for my stress or an xiety.
Around thi s time (early Nov ember 2019) [,] I also started counseling wi th Janie Grimes (who ha s since retired). I di scussed the s ituati on [inv olving] Ms. Miller many time s dur ing my sess io ns.

23. Wh en Ms

. Miller w as in t h e clas sroo m, I woul d do m y best to

tea ch an d focus on the children, but her hostile presence would be very47 distract ing. I hav e broken down in the school a few t i mes wh en I ju st coul d no t hold in my stress fro m he r constantly attackin g me o n Facebo ok and t o the s cho ol.

24. Once she falsely a ccus ed me of abusing my daughter to the
sch ool and to peers, I felt she had taken it to o far. The fact that she
would bri n g my d aug hter in [to] th e middle of this issue was very

upse tting. This affe cted both m y daughter and [m e] because I wa s having to dis cus s ad ult issues [with] her about Mrs. Miller

. I usually keep my children out of adu lt ma tters, as they do not need to b e c o ncern e d o r

wo rried at th eir ages ab out those things.

25. T he weight of he r cont inuo us false claims ag a inst m e has
af fecte d my overa ll physica l and mental well

- being. I have gain ed weight
since last Fall 2019 [,] a nd I h av e taken less interest in thi ngs I u sually

en joy outs ide of the classroom. I too k time off as a substitute teac her

t his y e ar because I wan t ed to focus on art. My plan wa s to cont inue to teach art next school year, but unless things improve materia lly, I j ust do
not feel I would be a ble to focus pr o perl y o n the ar t and th e students
kno wing Ms. Mil ler would or could ca use an y more mental o r po ten tially physi c al harm to me o r my f amily.

Watkins ’ s relativ ely detailed sta tements of the anguish that sh e has su ffered

establish prima faci e pro of o f m ent al

- an g uish damages. In reaching thi s concl usion

,

we rely on opinio ns from the T e xas S u pre me Court r eview i ng mental

- an guish awards

on app eal and compare the holding s of these cases to Watkins ’ s statements

.

The following are e xamples of the s u prem e c ourt ’ s d escr ipti ons of e mot ions

that were su fficient to sustai n a find ing o f mental angu ish:

• “ T h e p laintif f testif ied [th at] he lost tim e with hi s friends and family, spent time

worrying at home, and was distress ed about the impact the def a matory

s t atem ents had on him and his fa mily within their commun ity. ” Id. (desc ribing

te sti mon y in B entl e y , 94 S .W.3d at 606

– 07 )

.48 • A wido w whose husband ’ s grave was desecrated “ testi fied [that] she was

anxious for years about whe ther her own grave would be dese cr at e d, w as

afflicte d wi th headaches, co ul d not slee p, and suff ered stress that ca us ed

bur nin g in he r stomach. She so ught medical tr eat ment for these issu es and was

prescribed medi cation for anxiety and depression. ” Id. at 619

– 20 (footnote

omitted) (descri bi ng testimo n y in S er v

. Co rp. Int ’ l

, 34 8 S.W.3d a t 233 ).

• “ [ T

] e sti mony [ of pla intiff] reflect [ed] a s u bstantial disrupt ion in his life. His

f

amilia l re lationships were impact ed; his demeanor changed; he was unable to

sl eep ; and h e was trea ted for anxiety an d d epressi on

. ” Id

. a t 6 2 0

.

By comp a rin g Watkins ’ s testimo ny t o the quoted descript ions of emotio ns that

would supp ort a recover y fo r mental anguish , we conclude tha t she presented clear

and specific pr ima facie evidenc e of men tal anguish. Watkins ’ s r out ines a t sc ho ol and

w

i th h er daught er have bee n disru pted. S he claims that she has e xperienced phy s ical

symptoms f ro m the emotions pr oduced by Miller ’ s act ion s

. She has dis c ussed the

stress produced by what she ha s expe rienced w i th medical care providers. She has

a lt ered h er wor k plans. At thi s pr elimina ry stage o f the litigation

, such evidence

carri es Watkins ’ s burde n to present clea r and specific e vidence that she has su ffered

mental anguish. 8

8 On e of Mill er ’ s argument s tha t we have not addressed is t hat Watkin s failed to plead her claim adequately

, and fo r this reason, the tria l court should have g r anted the

m otion to dismiss

. We are unsure wha t to make of the argument. T he TCPA49 C. Miller ’ s brief is so deficien t tha t she has waived an y a rgum ent t ha t Watk ins fai led to pres ent c lear a nd specifi c evide n ce supporting
the elemen ts of her t ort ious

- interferen ce claim

.

Watk i ns also sued Mil ler for tortious interf erence with her contract to act a s a

substitute teacher. The trial court foun d tha t “ [W atkins ] h as s ati sfied he r b urden o f

pr oof to proceed on her causes of ac tion for defamat ion and tortious i nterference. ”

Miller’s b rief

, for the most part
, drop s the question of whether the trial court er red by

find in g that Watkins had carried th e bur den on her tortious

- i nterfere nce cla i m

.

Mille r ’ s bri ef contains exactly two ref eren ce s to the term to rtious interferen ce

. The

extent of Mil l er ’ s argument dealing with that cause of action i s as follows :

Here, [Watkins ] failed to est ab lish f act s b y clear and convincing evide n ce that s up p orted her def amation and tortious [

- ] interfe rence clai ms. [Watkins] fi led into the Cle rk’s Record a business [

- ] record [s] affidavit of Aubrey ISD and attached record s and four supporting declara ti ons. Th e busi nes s re co rds pr ovi ded by Aubrey IS D support the fac t th at [Miller]
f

ollowed proper channels for comp laining about an approved and

qua lifie d substitute teacher a nd volunteer. The Aubrey ISD records support the fa c t that [Miller] peti tioned th e scho ol distr ict thr o ugh i t s fo rmal and informa l complai nt p roc e sse s.

provides t h a t th e trial court is to consider the pleadin g s and evidence in resolving a

mo tion to dismiss

. See T ex. C iv. P rac. & R e m

. C ode Ann. § 27.005 (a)

. We ha ve detai led the ev idenc e that Watkin s p rese nted. We als o not ed that Watkins filed a

s u pplementa l pe tition that went into elaborate detail outlining t he sta tements that
Mil ler allegedly ma de. Further , Miller cite s no case t o suppo rt her positio n t hat a case in t h e pr ocedural stan ce of t his on e could be determin ed b ased on a defe c tive ple a ding

. The re is a question of whethe r a party respondi ng t o a TCPA motion to d ismiss may rel y solely on its pleadin gs to present evidence of a pri ma facie c laim. S ee Buzbee v. Cl ear Channel Outdo or, LLC

. , N o. 14

- 19

- 00512

- CV, 20 20 W L 6738021, at * 9

– 10 (Te x. App.

— Houston [14th Dist.] Nov. 17, 2020, no pet. h. )

. But Wa tkins w ent far beyond reliance o n her pleadin gs in esta blishin g her pri ma facie c a se for
defamation

.50 . . . .

[ Watkins] conceded in Paragraph 25 o f her Declara tio n that it was [her] own dec ision to not teach. [Watkins] stated that “Carl ye Mi ller tried to get my contract ter mi n a ted o r re v oke d” b ut late r stated that []
ultimat ely it w ould be [Watkin s ’ s ] own “fear” an d not [Miller ’ s] a ttempts to get he r fired that wou ld keep [Watkins] fr om teach ing

.

[Watkins] conc eded in Paragraph 29 of h er De claration that [ she]
h a [d] y et to l o se her a bi lity to substitute teach.

. . . .

. . . [Wat k ins] presented no evi dence that [Mi ller ’ s] actions rose to th e level of tortious interference with actual or prospective contract
becau se [Watkins] was at all times i n full c ont rol over whe the r she
wanted to substitute te ac h

— [Watkins] testifi ed in h er Dec l aration that it

wa s [her] own decis ion to not teach

.

Mi ller ’s brief lacks c itatio n to any autho rity addressing t ortious interference and

does not st ate ho w , in t he context of a TCPA motion to dism iss, a p a rty p rese nts

prima facie pr oo f of a l egal action asserting that c a us e of act ion. T he brief does not

even cite authority outlinin g what the elements of t he cause of action are. W e have

st r ived mig ht ily to co ax o ut argu ment s tes ting whether Watkin s pre s ent ed pri m a f ac i e

proof of the el e ments of a defama t ion claim

, but it is beyo nd our r o l e as an a ppellate

court to take on the job of completely briefing and then arg uing a party ’s appeal for

her

. Mil le r waiv ed erro r on the is sue of whe ther there was prim a f a ci e pro of of

Watkins ’ s tort io us

- interference act i on by inad equatel y br iefing h er a r gumen t. See Tex.

R. App. P. 38.1(i) (“The bri ef must contain a clear a nd concise ar gument fo r the

conte ntions mad e, with app ropr iate citati ons to authorities and t o the re c o rd.”).51 Essentially, Mille r l e aves it up to us t o brief h er issue , and we have no dut y to do so.

See H uey v. Huey , 200 S.W.3d 851, 854 (Tex. App.

— Dallas 2006 , no pet.). B ecause

Mi ller ’ s argu ment i s inad equ atel y briefed, we hold that it is waive d. S ee J ackson v.

Vaughn , 5 46 S.W. 3 d 91 3, 922 (Tex. App.

— A marillo 2018, no pet.).

D. O n th e record bef ore us, Mil le r has not establishe d that this c ase sh ould be dismissed because Watki ns faile d to com ply wi t h the
Te xa s Defamation Mitigation Act.

Miller argu es t hat Watkins lacks “ sta nd ing ” to sue her for defa m atio n beca use

Wat kins failed to c o mply wi th t he T e xas D e fa m ation M itigati on A c t (DMA)

. See Tex.

C iv . Prac. & Rem. Code Ann. § § 73.0 51

– .0 62

. I n s u p po rt of t hi s ar gument, Mil ler

ma kes a categoric al asser tion that Watkins failed to com pl y with the D MA beca u se

she n ev e r requ ested a retracti on of M i ller ’ s alle gedly defa matory sta tements

.

Watkins ’ s dec l aratio n , however, state s that she d id seek a retrac ti on

. F urt her, t he

D MA re quires a timely challeng e to the sufficiency of a retraction r eq uest
, and the

rec o rd conta ins no in dication that a c h al len ge w as filed

. We overrule Miller ’ s

argument because she fa il s to establish tha t the error she asserts actua ll y occu rred o r

that any p otential error was broug ht to the trial court ’ s attention

.

T he T e xas Supreme Cour t recently ex plain ed the histo ry a nd func tion of th e

D MA as foll ows :

The DMA was enacted in 1993 “t o provide a method f o r a person who
has been defa me d by a public ation or br oadcast to m i tigate a ny
p ercei ve d damag e or in jury.” The sta tu t e advances that ob jective by

pr ovidi ng sticks an d ca rrots t o induc e p laintiffs and defendants to take
prompt a ction t o rectify defamatory pu blications s o any ensuing52 da mages are ame liorated. The Act appli e s to “ al l p ublic ati o ns” in
whatev er form and al l “ c laim[s] for relie f, however cha ract erized, from
dama ges ari sing ou t o f harm to per sonal reputation caused by t he fals e content of a publi c at ion.”

Warne r Bros. Ent m ’ t , Inc. v . Jon e s , 611 S.W.3 d 1

, 10 (T ex. 2020 ) (foo tnote s om itte d )

(citing T ex. Civ

. Pr ac. & Rem

. Code Ann. § § 73. 0 5 2

, .054)

.

The m oving part s of the DM A in b road outline form are as follows :

• Section 73.055 (a) provides that “[a] perso n m ay maintain an actio n f or de fa m ation o nly if” (1) the perso n or an a uthor ized attorn ey or a gent “m ade a timely an d suf ficient reque st for a correct io n, clarific ation, o r retracti on fr om th e defendant” ( Request) or (2) the defe n dant has actually “made a c orrection,
clar ifica tio n, or r e tractio n” with or without a req uest

. T ex. Civ

. Prac. & Rem

. Code Ann

. § 73 .0 5 5(a).

• S ec tion 73.055 ( b) sta tes that a Request i s “ timely if made d u ring the pe riod of
li mitation f or co mmenc e ment of an a ction for defamation

. ” Id

. § 73.0 5 5 ( b ).

• S e ction 7 3.055 (d) s p ec ifies on wh om the Requ est sh oul d b e made and the

terms that it s hou l d co n t ain. Id

. § 73.0 5 5( d ).

• Secti on 73 .0 55 (c ) l imits the recov ery of exemplary damages if t he Request is
made mo re than ninety da ys “aft er re ceiving kno wledge o f th e publica tion

. ” I d

. § 73.0 5 5( c ).

• Sec tion 7 3.05 7 sp e ci fies what co nstitutes a time l y and suffic i e nt c orrection,

c larifi ca t ion, or re tracti on

. Id. § 73.0 5 7

.

• Sec tion 73 .058 provides h ow a defendant m a y rely on a co rrection that it issues
and whe n a de fe nd an t must chal lenge t he sufficiency and timel ines s of a R equest. Id. § 73.0 5 8

.

• Sec t io n 73.059 pr ovid es that “ [i] f a co rrection, clarification , or ret r actio n is
made i n accor dance w ith this subchapter, regardless of whether the pe rson claiming harm ma de a [R] e quest, a pers on m ay not recover exemplary dam age s unle ss the pu blication was m a de wi th actual mal ic e. ” Id. § 73.0 5 9

.53 Mille r ’ s argument r ecites var ious pa rt s of S e ction 73.0 55 a nd then makes the

following two

- sent ence argum ent :

H ere, i t is imposs ib le f or [Watki ns] t o meet the cle ar and con vincin g

st and ard requ ired by T ex. Civ. Prac. & R e m. Code [ Ann.] § 2 7 because [she] failed to provide any evide nce that she s atisf ied th e statu tory

co nditions precedent to bring he r claim. [Watkins] did no t have

st andi ng to bri ng suit f or defamation

.

Miller ’ s brief do es not give any reco rd ci t ations sho wing t hat she raised th is argu ment

i n the trial court, and we can not f in d such argument in t he rec ord

.

W atkins res po nds to Mil ler ’ s argument by attac hi ng to he r b ri ef (1) a letter

requesting retracti on th at she alleg ed l y s ent to Mil ler a nd (2) Miller ’ s co uns el ’ s

r esponse to the letter

. Alt hough i t is not surprising that the lette r s ar e not a part of

our record because the i ssue was no t raise d in th e t rial co ur t
, we ma y not consider t he

letter s tha t W atkins attache d t o h er brie f be cause they are not part o f t he a pp ella t e

reco rd in this case

. See WorldP ea ce v. Comm ’ n fo r L awyer Discipline , 183 S.W.3d 451, 4 65

n.23 (T ex. App.

— Houst on [14th Dist. ] 2005, p et

. denie d ) (“ [W ] e cannot consi der

doc uments atta ched as appendic es t o briefs and must consi der a cas e bas ed sole l y

upon the r ecord filed.”). H owever, th e r ecord refutes Mill e r ’ s statement t hat there is

no eviden ce that Watkins comp lied w it h the D MA

. Fir st, Watkin s ’ s dec laration file d

in suppor t of her response t o Mille r ’ s TC P A motio n to dismiss s t ates
,

Carl ye Mill er ’ s claim th at I filed a la wsuit agai nst he r withou t an y warning is false. My at t or ney sen t her a letter seeking a retra ction of her
false cl aims and s t a temen ts about me be fore the la wsuit w as filed.
Ca rlye Mil ler m ade no r esponse to t he lett er w hatsoev er

. The laws uit

was not fil ed until afte r sh e failed t o re spond to that letter.54 And second, Mi l l er testi fied a t on e of the hearings c ond uct e d b y Aubr e y IS D that he r

lawyer had draft ed an agreement: “ I ’ m pray ing that she does t he agreement that my

lawyer h as set up [,] but we still don ’ t know. ”

Miller also fa il s t o acknowled g e the provision of the DMA t ha t re quires her to

r aise a cha l l enge to the su ff ici enc y o f the r e quest f or retraction in th e trial court.

Spe cifi call y , S e ction 73. 058 (c) o f th e D M A prov i des

,

If a defendant intend s to challenge the s uffi ciency or t i me liness of a [R] equest for a co rrec tion, clarification, or ret r action

, the d efendant mu st

stat e the c hallenge i n a motion to declare the [R] equest i n su ffic i ent or untimely s e rve d not l ater t ha n the 60 th day after the date o f service of
the ci t atio n.

Tex. Ci v

. Prac. & Rem. Code Ann. § 7 3 .058 ( c)

. The Texas S upreme C ourt des cr i be d

th is pr ovi sion a s “ explic itly an d une quivocally plac [ ing] the onus on [t h e defen dan t ] to

raise an objecti on within 60 da y s af t er bei ng served with the defa mation lawsu it ” in

order to challenge the sufficiency o f a R equest for correction, c l a rifi cation

, or

re traction unde r S ect ion 73.0 55. War ne r Bros. Ent m ’ t

, 611 S.W.3 d at 13. T he su pr eme

court went o n to state th at “ the DM A exp l icitl y p ut s the b urden on defendants in a

defamat ion lawsui t to timely ( 1) object if Se ctio n 73.055(a)(1) h a s not been satis f ied

an d (2) p oint to a [c ] hange if they t hink it will reduce their dama ges e x p osure. ” Id

. at

16. Nei ther Mille r ’ s br ief nor the record c ontains a ny su ggesti on that she invoked

S ection 73.0 58(c) to challenge the R e quest f or retraction tha t the r eco rd ind i cates that

Watk i ns s en t.55 “ [T] he burden i s on a party appea l in g from a t rial court judgmen t to show th at

the jud gment is erro neo us in o rder to obt ain a r eve rsal

. ” Murray v. De vco, Ltd. , 7 31

S.W.2d 555, 55 7 ( Tex. 1987)

. Here

, we face an argum e nt that r e lies o n a factua l

st ate me nt that no R eques t f or retraction w as made when t he r e cord co ntradicts that

s ta tement

. A nd t h e uncer tai n ty regarding wh ether a R equ est for re traction was made

the n raise s an other question that w e are not in a po sitio n to a ns wer

— w

hether Miller

waived a challenge to the s u ffici ency of the R e ques t for retracti on by fail ing to

challe nge as requir ed b y S ectio n 73 .05 8 (c)

. W e cannot guess o ur wa y to a re solution

of M i ll er ’ s argument

. 9

W e have addressed the arguments tha t Mill er rai s es in support of her first is sue

and ha ve rej ected t hem

. A ccordingly, w e overrul e M iller ’ s first issu e

.

E. We reject Mill er ’ s ar gumen t that Watkins ’ s re quest for inju nctive

r elief shou ld b e re viewed as a discreet “ le ga l actio n ” that is subject

to dismis s al und er the TCPA.

In her seco nd issue, Mi ller att acks w hat she characterizes a s W atkin s ’ s third

c a use of actio n

— Wat ki n s ’ s r e q ues t fo r temporary inju n ctive re lief

. Mille r offe rs a

li tany of reasons why a re qu est for injunct ive r elief i s in va li d a nd s hou ld have been

d ism issed ; these include that th e re quest is a n at tempt to change th e p arentin g

9 Miller ’s brief also fails to re cogn ize th at t here is a split of au t ho rity on the is s ue of whether the remedy for failure to comp ly with the DMA is dismissal and that the
issue is present ly pending before th e T e xas Supreme Cou rt. See MediaOne , 59 2 S.W. 3d at 945 ( di scuss ing split bet ween cou rts of app eals) ; Zoanni v. Ho gan , 5 55 S. W.3d 321

, 328 ( Tex. App.

— Houston [1st Dist.] 2018, pe t. granted ) (pen di ng before sup re me

court o n petit ion for review that raises th e ques tion of the proper r e medy for a failure

to comply wi th DM A).56 arrang e ments ordere d in a d ecr ee o f di vo rce between Watkins and h er ex

- husband

an d that an injunction wo ul d imp air Miller ’ s abil ity to exerc ise a nu m be r of her

consti t utional rig ht s. The fac t is th a t the tr ial court did n ot gr an t any in ju nc tive r elief

and st ated tha t it wou ld not i mpose a pri or rest raint on M il ler ’ s spe ech. B ut mor e

fundamen tally

, Mi ller ’ s attack is mi sdi rected ; W at k in s ’ s req ues t fo r injuncti ve relief is

not a s eparat e lega l action to which a TCPA m otion to dismiss may be di rect e d.

A TCP A mot i o n to dismiss is direc ted to a “ l egal ac tion

. ” See Tex. C iv. Prac. &

R e m. Co de Ann. § 2 7.0 03 (a) ( “ If a legal a ct ion is base d on o r i s in response to a

par ty ’ s ex ercise of th e rig ht o f free sp eech, right to petition , or right of

a sso ci a tion

. . . [,] t h at party m ay fil e a motio n to dismiss th e legal a ction. ” )

. It is the

c ons ensus o f the intermedi at e appellate courts th at a req uest for i n jun cti ve relief is n ot

a d iscre te legal actio n t hat i s s ubject to dismissal u nder th e T CP A ; instead, “ [a]

t emp orary inju nction i s a rem edy that is available o nly if a p robable r ight to rel i e f has

been established in c onnection with a caus e of ac tion

. ” St o ne , 20 2 0 WL 614 3126

, a t

*5

. The Fourtee nth Cour t of A ppeals cat al og ed case s from v ar ious co urt s of a ppea ls

,

i ncluding our o wn, h old ing that a request f or in j un ctive rel ief may not b e separately

challenged under the T CP A as a discre te legal act ion

. Id

. Spec if ica lly

, the Fo urt eenth

n oted that

[a] t l ea st the Fi rs t, Second, Third [,] and F ifth Courts of App eals h a v e determined the T CP A does n ot all ow a request f or injuncti ve relief t o be

separa t ely challenged when it is l in ked to a cause of action

. S ee Cav i n v

. A b bott

, [613 S. W.3d 168, 172 (Tex. App.

— Aus tin 2 020, no pe t. h.) ] (holding that TCPA did n o t appl y t o d au ghter ’ s request f o r injuncti on57 pro hibit i ng fathe r from contacting d au ghter through any means of
communicat ion, where in juncti ve relief w as de pe nd e nt on d aughter ’ s und er lying claim for fa ther ’ s w rongfu l a ct of a ss a ult);

. . . Bui

. . . , 2019
WL 515 14 1 0, at *5

– 6

. . . (stat i ng t hat in ju ncti ve relief was a re me dy tied

to a defamation c laim and “a remedy request is no t s eparate ly challengeab le a part f r om the cause of acti on to which it is li n ked”); V an Der Lind e n

. . . , 535 S.W.3d [a t] 20 3

. . . (hold in g th at “injunctiv e rel ie f is

a rem edy, n ot a st an d

- alo ne cause of a ction” in suit fo r torti ou s interference with a c ontrac t , tortiou s interfe renc e with pr os pe ctive
b usiness rel a tions, and defam ation); cf. R uder v. Jordan , No. 05

- 14

- 0126 5

- CV, 2 015 W L 4397 63 6, a t *6 (Tex. Ap p.

— Da ll as July 20 , 2015 , no pe t. ) (me m. op.) ( decl ining to revie w s eparate ly trial court ’ s denial o f TCPA
dismissal of injun ctiv e reli ef be ca use it was anc illa r y to defamation claims
alre ad y reviewed). We agree with th ese sist er c ourts.

I

d

. T h us, up to this po int our opi nion ha s foc used on whether th e re is prima facie

proof of the caus es of acti o n asserted in Watkins ’ s l egal act io n, n ot the viability of

a ncillary relief that she s ou ght but did not receive

. W e will no t address whether the

tr ia l co urt should hav e separately dis missed h er r eq uest for injuncti ve re li ef when that

ancillary r elief i s not a legal action prop erly su bj e c t t o a TCP A m otion to dismi ss

.

We overrule M i ller ’ s se cond issue

.

IV

. Conclusion

Havi ng overrule d Mille r ’ s f ir st a nd s econd issue s , we affirm t he tr i al court ’ s

o r der d eny ing Miller ’ s TCPA m otion to dismis s

.
/s/ Dabney Bassel

Dabn ey Bassel Justice

D eliver ed: March 11, 2021