Opinion issued September 15, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00617-CV

———————————

BOB DEUELL, Appellant

V.

TEXAS RIGHT TO LIFE COMMITTEE, INC., Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2014-32179

DISSENTING OPINION

[A] calculated falsehood, inserted into the midst of a heated political 

campaign, can unalterably distort the process of self-determination. 

For the use of a known lie . . . is at once at odds with the premises of 

democratic government and the orderly manner in which economic, 

social, and political change is to be effected. Half-truths strung 
2

misleadingly together are no less destructive of democracy than an 

outright lie.[1]

Because the majority errs in concluding that appellee, Texas Right to Life 

Committee, Inc. (“TRLC”), established by clear and specific evidence a prima 

facie case for each essential element of its claims of tortious interference with 

contract against appellant, former state Senator Bob Deuell, I respectfully dissent. 

In the May 4, 2014 Texas Republican Primary election, Deuell, a sitting 

Texas State Senator, sought re-election. Days later, with Deuell facing a 

challenger in the May 27, 2014 run-off election, TRLC produced a radio 

advertisement about Deuell’s sponsorship in 2013 of Senate Bill 303, “relating to 

advance directives and health care and treatment decisions.”2 The script of the 

advertisement reads as follows:

Before you trust Bob Deuell to protect life, please listen carefully. If 

your loved one is in the hospital, you may be shocked to learn that a 

faceless hospital panel can deny life-sustaining care[—]giving you 

only 10 days to find another facility for your mother, dad, or young 

child even if the patient is conscious. Your civil liberties and your 

right to life should not go away once you are in the hospital. This 

actually happens to families across Texas, and Bob Deuel[l] 

sponsored a bill to give even more power to these hospital panels over 

life and death for our ailing family members. Bob Deuell turned his 

back on life and on disabled patients. Don’t trust him to protect you if 

you are sick. . . .

 

1 Turner v. KTRK Television, Inc., 38 S.W.3d 103, 137 (Tex. 2000) (Baker, J., 

joined by Enoch, J., and Hankinson, J., concurring in part and dissenting in part) 

(internal quotations omitted). 

2 TEX. S.B. 303, 83rd Leg., R.S. (2013). 
3

And TRLC contracted with Cumulus Media Dallas–Fort Worth (“Cumulus”) and 

Salem Communications (“Salem”) to broadcast its advertisement on their radio 

stations. 

Subsequently, Deuell sent a series of cease-and-desist letters to the radio 

stations, complaining that TRLC’s advertisement was false and defamatory.3 He 

 

3 Senate Bill 303 actually proposed to extend from ten days to fourteen days the 

time to transfer a patient to an alternative health care provider. Compare TEX.

HEALTH & SAFETY CODE ANN. § 166.046(e) (Vernon 2010 & Supp. 2016) 

(physician and health care facility “not obligated to provide life-sustaining 

treatment after the 10th day” after ethics committee’s written decision regarding 

withdrawal of life-sustaining treatment), with Senate Comm. on Health & Human 

Servs., Bill Analysis, Tex. S.B. 303, 83rd Leg., R.S. (2013) (physician and health 

care facility “not obligated to provide life-sustaining treatment after the 14th 

day”). Senate Bill 303 also proposed to extend from 48 hours to 7 days the family 

notification period in advance of an ethics committee meeting regarding a decision 

to withhold or withdraw life-sustaining treatment. Compare TEX. HEALTH &

SAFETY CODE ANN. § 166.046(b) (patient or family must be “informed” of review 

process “not less than 48 hours before” meeting), with Senate Comm. on Health & 

Human Servs., Bill Analysis, Tex. S.B. 303, 83rd Leg., R.S. (2013) (committee 

“required,” “not later than the seventh calendar day before” meeting regarding 

decision to withhold or withdraw life-sustaining treatment, to provide patient or 

“surrogate” (family member or clergy) with “written description” of review 

process and “notice” of “entitle[ment]” to second opinion and to “attend and 

participate in” meeting). Senate Bill 303 also increased a health care provider’s 

duty to inform a patient’s family prior to withholding or withdrawing lifesustaining treatment. Compare TEX. HEALTH & SAFETY CODE ANN. § 166.039(b) 

(Vernon 2010 & Supp. 2015) (authorizing “attending physician and one person,” 

including a patient’s spouse, adult child, parent, or relative, “if available,” to make 

decision to “withhold or withdraw life-sustaining treatment”), with Senate Comm. 

on Health & Human Servs., Bill Analysis, Tex. S.B. 303, 83rd Leg., R.S. (2013) 

(“[r]equiring” attending physician and health care facility to make “reasonably 

diligent effort to contact” family or clergy). Further, Senate Bill 303 increased the 

accountability of health care providers. See Senate Comm. on Health & Human 

Servs., Bill Analysis, Tex. S.B. 303, 83rd Leg., R.S. (2013) (requiring facilities to 

report number of cases in which ending life-sustaining treatment considered and 

their disposition).
4

attached to his letters a statement by the Texas Catholic Conference. In their

statement, the Catholic Bishops of Texas endorsed Senate Bill 303 as follows, in 

pertinent part: 

Texas Catholic Bishops joined a coalition of the state’s largest pro-life 

organizations, healthcare providers, and religious denominations to endorse 

legislation introduced by state Senator Robert Deuell . . . to improve the 

state’s handling of end-of-life care in a way that balances the protections of 

human life and a medical provider’s conscience (SB 303).

Senate Bill 303 would reform the Texas Advance Directives Act of 

1999 . . . to improve the statute’s clarity and consistency about many ethical 

decisions amid the complexity of end-of-life care. For instance, the current 

statute contains definitions that could be interpreted to allow for the 

premature withdrawal of care for patients who may have irreversible, but 

non-terminal, conditions; fails to ensure that all patients are provided with 

basic nutrition and hydration; and falls short in ensuring the clearest and 

most compassionate communication between medical professionals and 

patient families when disagreements arise.

The reforms set forth by Sen. Deuell’s bill address those shortcomings by 

empowering families and surrogates, [and] protecting physicians and other 

providers . . . . Senate Bill 303 also earned the endorsement of the Texas 

Medical Association, Texas Hospital Association, Catholic Health 

Association – Texas, Texas Alliance for Life, and the Baptist General 

Convention of Texas.

Texas Catholic Conference, Texas Bishops Endorse SB 303 [t]o Improve End-[o]fLife Care (Jan. 31, 2013), http://www.txcatholic.org/news/300-bishops-applaudadvance-directives-reform-bill (attached as an appendix to this opinion).

After the Cumulus and Salem radio stations suspended the airing of TRLC’s 

advertisements, TRLC purchased a new advertisement to air on the stations, and it 

contracted for airtime with CBS Radio Texas (“CBS”). And after Deuell was 

defeated in the run-off election, TRLC filed the instant suit against him, alleging 
5

that he had tortiously interfered with its contracts with Cumulus and Salem. 

Deuell moved to dismiss the suit under the Texas Citizens Participation Act (the 

“TCPA”).4 And the trial court denied his motion.

In his first issue, Deuell argues that the trial court erred in denying his 

motion to dismiss TRLC’s lawsuit because his communications to Cumulus and 

Salem related to his exercise of free speech and TRLC failed to establish a prima 

facie case for its claims of tortious interference with contract. 

The purpose of the TCPA is “to encourage and safeguard the constitutional 

rights of persons to petition, speak freely, associate freely, and otherwise 

participate in government to the maximum extent permitted by law.” TEX. CIV.

PRAC. & REM. CODE ANN. § 27.002 (Vernon 2015). It “protects citizens from 

retaliatory lawsuits that seek to intimidate or silence them” from exercising their 

First Amendment freedoms and provides a procedure for the “expedited dismissal 

of such suits.” In re Lipsky, 460 S.W.3d 579, 584, 586 (Tex. 2015); see TEX. CIV.

PRAC. & REM. CODE ANN. §§ 27.001–.011 (Vernon 2015). It is intended to 

identify and summarily dispose of lawsuits “designed only to chill First 

Amendment rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 

at 589. And it is to be “construed liberally to effectuate its purpose and intent 

fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b). 

 

4 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (Vernon 2015). 
6

A defendant who believes that a lawsuit is based on his valid exercise of 

First Amendment rights may move for expedited dismissal of the suit. In re 

Lipsky, 460 S.W.3d at 586. The defendant must first show “by a preponderance of 

the evidence” the applicability of the TCPA, that is, that the plaintiff’s claim is 

“based on, relates to or is in response to the [defendant’s] exercise of: (1) the right 

of free speech; (2) the right to petition; or (3) the right of association.” Id. at 586–

87 (internal citations omitted); see also TEX. CIV. PRAC. & REM. CODE ANN. 

§ 27.005(b). The first step of the inquiry is a legal question that we review de 

novo. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); Newspaper 

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. 

App.—Houston [1st Dist.] 2013, pet. denied). 

If the initial showing is made, the burden then shifts to the plaintiff to 

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

element of its claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); Lipsky, 460 

S.W.3d at 587–88; Newspaper Holdings, Inc., 416 S.W.3d at 80. “The words 

‘clear and specific’ in the context of this statute have been interpreted respectively 

to mean, for the former, ‘unambiguous,’ ‘sure,’ or ‘free from doubt’ and, for the 

latter, ‘explicit’ or ‘relating to a particular named thing.’” Lipsky, 460 S.W.3d at 

590 (quoting BLACK’S LAW DICTIONARY 268, 1434 (8th ed. 2004)); see KTRK 

Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston 1st [Dist.] 
7

2013, pet. denied). In contrast, a “prima facie case” has a “traditional legal 

meaning.” Lipsky, 460 S.W.3d at 590. “It refers to evidence sufficient as a matter 

of law to establish a given fact if it is not rebutted.” Id. (emphasis added). Thus, 

“pleadings that might suffice in a case that does not implicate the TCPA may not 

be sufficient to satisfy the TCPA’s ‘clear and specific evidence’ requirement.” Id.

at 590–91 (“Mere notice pleading . . . will not suffice.”). “[A] plaintiff must 

provide enough detail to show the factual basis for its claim.” Id. at 591. 

In determining whether a legal action should be dismissed, “the court shall 

consider the pleadings and supporting and opposing affidavits stating the facts on 

which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN. 

§ 27.006(a). We review the pleadings and evidence in a light favorable to the 

plaintiff. Newspaper Holdings, Inc., 416 S.W.3d at 80–81. If the defendant’s 

constitutional rights are implicated and the plaintiff has not met the required 

showing of a prima facie case, the trial court must dismiss the plaintiff’s claim. 

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005. 

Here, Deuell asserted in his motion to dismiss that TRLC’s lawsuit against 

him is based on his exercise of the right of free speech. See Lipsky, 460 S.W.3d at 

586–87. The TCPA defines the “[e]xercise of the right of free speech” as “a 

communication made in connection with a matter of public concern.” TEX. CIV.

PRAC. & REM. CODE ANN. § 27.001(3). A “communication” includes the “making 
8

or submitting of a statement or document in any form or medium, including oral, 

visual, written, audiovisual, or electronic.” Id. § 27.001(1). A “matter of public 

concern” includes an issue related to: “(A) health or safety; (B) environmental, 

economic, or community well-being; (C) the government; (D) a public official or 

public figure; or (E) a good, product, or service in the marketplace.” Id. 

§ 27.001(7). 

The record shows that TRLC’s claims are based on Deuell’s statements, 

which were contained in letters he wrote to the radio stations running TRLC’s 

advertisement, complaining that it had misrepresented the purpose and effect of 

legislation he had sponsored as a senator for the State of Texas. The 

complained-of statements constitute “communications,” as defined in the statute. 

See id. § 27.001(1). Further, the statements regard a “matter of public concern,” as 

defined, because they concern issues related to the government and a public 

official, i.e., Deuell’s comment on political advertisements relating to him, as a 

senator, during an election, concerning legislation that he sponsored in the Texas 

Senate. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7).

Because Deuell established that the TCPA applies to TRLC’s claims against 

him, the burden then shifted to TRLC to establish by “clear and specific evidence”

a prima facie case for each essential element of its claims. See TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(c); Lipsky, 460 S.W.3d at 586–87; Newspaper 
9

Holdings, Inc., 416 S.W.3d at 80. The elements of TRLC’s claims for tortious 

interference with contract are (1) an existing contract subject to interference, (2) a 

willful and intentional act of interference with the contract by Deuell, (3) that 

proximately caused TRLC injury, and (4) “caused actual damages or loss.” 

Prudential Ins. Co. of Am. v. Fin. Review Servs. Inc., 29 S.W.3d 74, 77 (Tex. 

2000).

TRLC asserts that it had contracts with Cumulus and Salem for the 

broadcasting of its advertisement leading up to the May 27, 2014 run-off election. 

Deuell interfered with TRLC’s contracts by threatening litigation against the radio 

stations if they did not suspend the broadcasting of its advertisement. His letters 

resulted in the two radio stations suspending TRLC’s advertisement and caused it 

to lose two days of airtime. And TRLC was forced to purchase a new 

advertisement and contract for airtime with CBS. 

As evidentiary support, TRLC presented the affidavit of its executive 

director, James J. Graham. In his affidavit, Graham testified that on May 6, 2014, 

TRLC contracted with Malone Media Design (“Malone”) to produce a radio 

advertisement for the Dallas and Fort Worth media markets concerning Deuell’s 

“voting record” for $450. On May 7, 2014, TRLC entered into a contract with 

Cumulus for the placement and airing of the radio advertisement for 

“approximately $17,935.” And on May 8, 2014, TRLC entered into a contract 
10

with Salem for the placement and airing of the radio advertisement for

“approximately $22,015.”

According to Graham, Cumulus and Salem, on May 14, 2014, notified 

TRLC that they had received “legal threats” from Deuell based on TRLC’s 

advertisement and they were suspending its airing. “As a compromise to resume 

airing [of TRLC’s] radio advertisement, given the concerns of [Cumulus] and 

[Salem], [TRLC] agreed to produce a new radio advertisement and replace the

original radio advertisement. . . .” TRLC returned to Malone and “had another 

radio advertisement produced and delivered” to Cumulus and Salem. And, as a 

“remedial measure[],” TRLC also “contracted with [CBS]” to purchase

“additional airtime in the Dallas/F[ort] Worth media market for the new radio 

advertisement” for “approximately $15,037.”

Graham’s testimony, standing alone, does not establish the existence of a 

contract. See Prudential Ins. Co. of Am., 29 S.W.3d at 77; see also Serafine v. 

Blunt, 466 S.W.3d 352, 361 (Tex. App.—Austin 2015, no pet.). In Serafine, the 

Blunts alleged that Serafine tortiously interfered with their contract with a drainage 

and foundation company to install a pump-and-drain system on their property. 466 

S.W.3d at 361. Seraphine threatened the company’s employees while they 

worked, and she threatened the company with litigation, resulting in its decision

“not to continue the contracted-for work” and causing the Blunts to have to “pay 
11

more for the work.” Id. Pursuant to the TCPA, Serafine moved to dismiss the 

Blunts’ claim against her. Id. Mr. Blunt, in his affidavit in response to Serafine’s 

motion, testified that he had “hired [the company] to professionally install a pump 

and drain system.” Id. At a hearing, he explained that he had hired it “to resolve a 

drainage problem that was causing water to gather under his house.” Id. And it 

was “going to install French drains around the property and against the border of 

his house that would tie into a sump pump that would pump the water out to a popout valve so it would flow down into the street.” Id. The Austin Court of Appeals 

held that the Blunts had “failed to establish a prima facie case for [the contract] 

element of their claim” because “Mr. Blunt did not provide detail about the 

specific terms of the contract or attach to his affidavit any contract or other 

document memorializing any agreement between the Blunts and the drainage 

company about the scope of work to be done.” Id. at 361–62 (emphasis added).

This Court recently reached the same conclusion in a case with similar facts. 

See Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 

S.W.3d 345, 361 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In John 

Moore, we held that the nonmovant had “failed to establish by clear and specific 

evidence the essential element of the existence of a contract” because it did not 

present evidence regarding “the terms” of any of its contracts with its customers or 
12

the Better Business Bureau chapters. Id. (emphasis added). Rather, the 

nonmovant merely asserted that contracts existed.5 Id.

Here, Graham, in his testimony, presented even less detail about the terms of 

TRLC’s contracts with Cumulus and Salem than did Blunt in his affidavit in 

Seraphine. See 466 S.W.3d at 361–62. Graham’s testimony does not constitute 

“clear and specific evidence” of “the terms” of any contract. See id. at 361; John 

Moore Servs., Inc., 441 S.W.3d at 361; see also All Am. Tel., Inc. v. USLD 

Commc’ns, Inc., 291 S.W.3d 518, 532 (Tex. App.—Fort Worth 2009, pet. denied) 

(general statement contracts existed insufficient to maintain tortious-interferencewith-contract claim where affidavit provided no “detail as to specific terms” of 

contracts and no contract attached “to serve as an exemplar”). Thus, TRLC did not 

establish a prima facie case for the existence of a contract. See Prudential Ins. Co. 

of Am., 29 S.W.3d at 77; see also Lipsky, 460 S.W.3d at 590–91 (plaintiff “must 

provide enough detail to show the factual basis of its claim” and present “evidence 

 

5

In support of its holding, the majority relies, in part, on Martin v. Bravenec, No. 

04-14-00483-CV, 2015 WL 2255139, at *7 (Tex. App.—San Antonio May 13, 

2015, pet. denied). In Martin, the San Antonio appellate court’s entire analysis 

“[w]ith regard to the existence of a contract,” is as follows: “[T]he pleadings 

alleged the appellees have a contract to sell the Property, and Bravenec identified 

the name of the prospective purchaser at the hearing.” Id. As discussed, this 

Court has previously held that merely alleging that a contract exists is insufficient 

to establish “by clear and specific evidence the essential element of the existence 

of a contract.” See Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., 

Inc., 441 S.W.3d 345, 361 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). 

Further, identifying a “prospective purchaser” alone does not establish “the terms” 

of a contract. See id.
13

sufficient as a matter of law to establish a given fact if it is not rebutted” (emphasis 

added)). 

Graham’s testimony also does not establish that Deuell committed a willful 

and intentional act of interference with any contract. See Prudential Ins. Co. of 

Am., 29 S.W.3d at 77. A willful and intentional interference requires evidence that 

the defendant “knowingly induced” a contracting party to breach its obligations. 

Serafine, 466 S.W.3d at 362; see also John Paul Mitchell Sys. v. Randalls Food 

Mkts., 17 S.W.3d at 721, 730 (Tex. App.—Austin 2000, pet. denied). Graham’s 

conclusory testimony about the existence of a contract is insufficient to establish a 

breach of any of specific contract provision. See All Am. Tel., Inc., 291 S.W.3d at 

532. Further, TRLC was required to provide “clear and specific evidence” that 

“some obligatory provision” of the contract was breached. Id. (emphasis added). 

“Inducing a contract obligor to do what it has a right to do is not an 

actionable interference.” ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 

(Tex. 1997). A licensed6radio broadcasting station is, with the very narrow 

 

6 The Communications Act of 1934 (the “Act”) “forbids any person from operating 

a broadcast station without first obtaining a license” from the Federal 

Communications Commission. United States v. Midwest Video Corp., 406 U.S. 

649, 679, 92 S. Ct. 1860, 1876 (1972) (Douglas, J., joined by Stewart, J., Powell, 

J., and Rehnquist, J., dissenting) (citing 47 U.S.C. § 301). The Act extends “to all 

interstate and foreign communication by wire or radio . . . which originates and/or 

is received within the United States.” Id. (citing 47 U.S.C. § 152(a)).
14

exception of advertising by political candidates,7“obliged to reserve to [itself] the 

final decision” as to the content it will air. Nat’l Broad. Co. v. United States, 319 

U.S. 190, 205, 63 S. Ct. 997, 1004 (1943) (“[A] licensee has the duty of 

determining what [content] shall be broadcast over [its] station’s facilities.”); see 

also McIntire v. Wm. Penn Broad. Co. of Pa., 151 F.2d 597, 601 (3d Cir. 1945)

(“[A] radio broadcasting station is not a public utility in the sense that it must 

permit broadcasting by whoever comes to its microphones.”). 

Moreover, a licensed radio station “must operate in the public interest.” 

United States v. Midwest Video Corp., 406 U.S. 649, 679, 92 S. Ct. 1860, 1876 

(1972) (Douglas, J., joined by Stewart, J., Powell, J., and Rehnquist, J., dissenting) 

(citing 47 U.S.C. §§ 308–09); see also Nat. Broad. Co., 319 U.S. at 205, 63 S. Ct. 

 

7

If a licensee permits “any person who is a legally qualified candidate for any 

public office to use a broadcasting station, he shall afford equal opportunities to all 

other such candidates for that office in the use of such broadcasting station.” 47 

U.S.C. § 315(a), (b)(2)(D) (“A candidate meets the requirements of this 

subparagraph if, in the case of a radio broadcast, the broadcast includes a personal 

audio statement by the candidate that identifies the candidate, the office the 

candidate is seeking, and indicates that the candidate has approved the 

broadcast.”); see also KENS-TV, Inc. v. Farias, No. 04-07-00170-CV, 2007 WL 

2253502, at *3 (Tex. App.—San Antonio Aug. 8, 2007, pet. denied) (mem. op.) 

(discussing “use” advertisements under section 315(a)). A licensee has “no power 

of censorship over the material broadcast” in a “use” advertisement. 47 U.S.C.

§ 315(a). And because the broadcaster cannot censor the candidate’s materials, it 

is immune from state libel claims. Farmers Educ. & Coop. Union of Am. v. 

WDAY, Inc., 360 U.S. 525, 528, 535, 79 S. Ct. 1302, 1305, 1308 (1959); see also 

Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 516 (Tex. App.—Austin 1991,

writ denied). However, because third-party groups, like TRLC, are not “legally 

qualified candidate[s],” they are not subject to the “no censorship” provisions of 

section 315(a), and radio stations can be held liable for the content of their 

advertising. 
15

at 1004 (“It is the station, not the network, which is licensed to serve the public 

interest.”). The Federal Communications Commission (“FCC”), “in determining 

whether a licensee’s operation has served the public interest, considers whether [it] 

has complied with state and local regulations governing advertising.” Head v. 

N.M. Bd. of Exam’rs in Optometry, 374 U.S. 424, 445, 83 S. Ct. 1759, 1771

(1963). And the National Association of Broadcasters “unmistakably enjoins each 

member to refuse the facilities of his station to an advertiser where he has good 

reason to doubt the integrity of the advertiser, the truth of the advertising 

representations, or the compliance of the advertiser with the spirit and purpose of 

all applicable legal requirements.” Id. at 446, 83 S. Ct. at 1771.

Thus, for a radio station to execute an agreement to “broadcast all 

advertisements tendered to [it], without qualification” would constitute an “illegal” 

contract because a licensee “cannot lawfully delegate [its] duty or transfer the 

control of [its] station” to another. Nat’l Broad. Co., 319 U.S. at 205, 63 S. Ct. at 

1004; Traweek v. Radio Brady, Inc., 441 S.W.2d 240, 242 (Tex. Civ. App.—

Austin 1969, writ ref’d n.r.e.); see also 47 U.S.C. § 310(d) (prohibiting transfer of 

licensing or control except by application to FCC). Notably, a contract that is 

illegal or contrary to public policy cannot serve as the basis for a claim of tortious 

interference with contract. Wa. Square Fin., LLC v. RSL Funding, LLC, 418 

S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
16

Here, because TRLC did not present any of the details about the terms of its 

contracts with Cumulus and Salem, it did not present “clear and specific evidence” 

that an “obligatory provision” of the contracts was breached.

8 See All Am. Tel., 

291 S.W.3d at 532 (emphasis added).

Further, Graham’s testimony does not present clear and specific evidence 

establishing a prima facie case that Deuell’s actions “caused actual damages or 

loss.” See Prudential Ins. Co. of Am., 29 S.W.3d at 77. Graham, in his affidavit, 

asserts only the price paid for each contract and that some portion of each was not 

performed. Further, Graham, in his affidavit, does not present any of the details of 

TRLC’s new contract with CBS, i.e., when it was executed, when the “remedial” 

advertisements began airing, how many spots were aired, or when they stopped. 

At the hearing on Deuell’s motion to dismiss, the following exchange took 

place between the trial court and counsel for TRLC:

 

8 The majority asserts that “TRLC did not bear the burden to disprove the existence 

of Deuell’s potential defenses.” The Texas Supreme Court has rejected similar 

reasoning in another case involving a claim for tortious interference with contract. 

See ACS Inv’rs v. McLaughlin, 943 S.W.2d 426, 431 (Tex. 1997). There, 

McLaughlin similarly asserted that ACS’s argument that its action was authorized 

under the contract and was therefore not subject to interference constituted an 

attempt to raise a defense. Id. The court explained that establishing the existence 

of a contract subject to interference constituted an essential element of 

McLaughlin’s prima facie case. Id. And the existence of a defense was “not an 

issue.” Id. The court concluded that because the evidence revealed that the 

agreement was not subject to the tortious interference allegation, ACS did not 

interfere as a matter of law and need not prove a defense to avoid liability. Id.

(“The focus in evaluating a tortious interference claim begins, and in this case 

remains, on whether the contract is subject to the alleged interference.”)

(emphasis added)). 
17

THE COURT: You were off the air for two days?

TRLC: We were off the air for two days.

THE COURT: How are you going to—this is just a curiosity here. 

How are you going to prove damages for the two 

days?

TRLC: I can do it right now. I can prove them almost to 

the penny, and I can—I can put on a witness who 

we’re prepared to do.

THE COURT: That’s not part of this Motion. As I said, that was 

a curiosity on my part.

As an element of its prima facie case, however, TRLC was required to present 

evidence of its damages. See Prudential Ins. Co. of Am., 29 S.W.3d at 77. And 

TRLC presented no such evidence at the hearing. 

Again, a “prima facie case” “refers to evidence sufficient as a matter of law 

to establish a given fact if it is not rebutted.” Lipsky, 460 S.W.3d at 590 (emphasis 

added). “[B]aseless opinions do not create fact questions, and neither are they a 

sufficient substitute for the clear and specific evidence required to establish a 

prima facie case under the TCPA.” Id. at 592. TRLC was required to “provide 

enough detail to show the factual basis of its claim[s].” Id. at 591; see, e.g., Tex. 

Campaign for the Env’t v. Partners Dewatering Int’l, LLC, 485 S.W.3d 184, 199–

200 (Tex. App.—Corpus Christi 2016, no pet.) (affidavit testimony set out 

damages model, considerations upon which damages were based, and included 

costs up to time of contract cancellation).
18

Graham’s testimony shows that TRLC did not merely pay Malone to 

produce a new commercial for Cumulus and Salem pursuant to the “compromise” 

that TRLC struck “to resume airing [of its] radio advertisement[].” Rather, TRLC 

signed a new contract with CBS, the terms of which it did not present to the trial 

court. And, according to Graham, TRLC paid just $450 to Malone to produce the 

original advertisement and $17,935 and $22,015 to Cumulus and Salem, 

respectively, to broadcast it over the total contract period. Nevertheless, TRLC 

asserts that it was forced to spend over $15,000 to cure the lost airtime, which 

Graham does not quantify in his affidavit, but TRLC’s counsel explained at the 

hearing constituted only a two-day period. “[O]pinions must be based on 

demonstrable facts and a reasoned basis.” In re Lipsky, 460 S.W.3d at 593 

(emphasis added). 
19

In sum, TRLC presented no evidence to establish any of the elements of its 

claims against Deuell for tortious interference with contract. See Prudential Ins. 

Co. of Am., 29 S.W.3d at 77. Deuell established that the TCPA applies to the 

claims against him, and TRLC did not present clear and specific evidence 

establishing a prima facie case of each of the elements of its tortious-interference 

claims. Accordingly, I would reverse the trial court’s order and render judgment 

dismissing TRLC’s claims against Deuell.

Terry Jennings

Justice

Panel consists of Justices Jennings, Bland, and Huddle.

Jennings, J., dissenting.