ROBERT B. JAMES, DDS, INC. ; Robert B. James, DDS, Individually; Jean James, Individually; and Alexis Mei Pyles, Individually, Appellants v. Cassandra J. ELKINS, DDS, Appellee

No. 04-17-00160-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: May 30, 2018

APPELLANT ATTORNEY: Linda R. Stahl, Edgar Leon Carter, Carter Scholer, PLLC, 8150 N. Central Expressway, Suite 500, Dallas, TX 75206, David R. Montpas, Prichard Hawkins Young, 10101 Reunion Place, Suite 600, San Antonio, TX 78216.

APPELLEE ATTORNEY: Eric D. Sherer, Sherer & Crow, PLLC, 11120 Wurzbach Road, Suite 200, San Antonio, TX 78230.

Sitting:Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

Opinion by: Irene Rios, Justice

This is an appeal from a trial court's order denying two motions to dismiss under the Texas Citizens Participation Act (TCPA). In this appeal, we must determine whether the TCPA applies to Cassandra J. Elkins, DDS's legal actions and, if so, whether Dr. Elkins established by clear and specific evidence each element challenged on appeal. As explained in this opinion, we affirm as to some legal actions, reverse and render a dismissal as to others, and remand for a determination of *602attorney's fees and costs as to the dismissed legal actions.

**BACKGROUND**

In 1991, Robert James, DDS hired Dr. Elkins to work at his San Antonio-based pediatric dental practice, Robert B. James, DDS, Inc. ("the Practice"). Dr. James and Dr. Elkins signed a written employment contract providing the terms of Dr. Elkins's compensation. Dr. Elkins worked for the Practice for twenty-three years and, according to her, the Practice consistently paid her 30% of her gross production. Dr. James hoped that when he retired, Dr. Elkins would purchase the Practice. But when he offered to sell the Practice to Dr. Elkins, she declined.

Dr. James had his wife, Jean James, investigate Dr. Elkins's payroll history, and Jean sought the help of the Practice's administrator, Alexis Mei Pyles. Dr. James informed Jean and Pyles that, under Dr. Elkins's employment contract, she should have been paid only 30% of net production, a calculation based on collections and not gross production. Jean and Pyles reviewed financial records for the prior three years and found Dr. Elkins was being paid 30% of gross production. Pyles prepared a Fraud Examination Report, concluding that Dr. Elkins misappropriated over $350,000. When Jean and Pyles informed Dr. James of their findings, Dr. James decided to terminate Dr. Elkins's employment. Thereafter, Jean and Pyles reported Dr. Elkins's alleged theft to the San Antonio Police Department (SAPD). During the SAPD's investigation, Dr. James, Jean, and Pyles each made statements to the SAPD alleging Dr. Elkins stole money from the Practice. The Practice also made an insurance claim based on Dr. Elkins's purported theft with its insurer, Travelers Casualty Insurance Company. Dr. Elkins was later indicted and arrested.

Dr. Elkins sued the Practice, Dr. James, Jean, and Pyles, alleging various causes of action against them. Her theories of liability included defamation, business disparagement, intentional infliction of emotional distress, and civil conspiracy. The Practice, Dr. James, and Jean (collectively "the James Appellants") filed a partial motion to dismiss under the TCPA; Pyles filed a separate TCPA motion to dismiss. Dr. Elkins responded by producing her affidavit, records from the Practice, the Fraud Examination Report, the SAPD report, Dr. James's and Jean's written statements to the SAPD, and other documents. Dr. Elkins also filed a motion for continuance and for discovery, which the trial court denied. No party produced the employment contract, which had been lost over the years.

After hearing the motions to dismiss, the trial court signed an order denying both motions without specifying the basis for its order. The James Appellants and Pyles filed a joint motion to reconsider, attaching additional evidence it alleged was newly discovered. In response, Dr. Elkins produced additional evidence to dispute the authenticity of the evidence attached to the joint motion. The trial court signed an order denying the joint motion, and this appeal followed.

**APPLICABLE LAW & STANDARD OF REVIEW**

If a legal action is based on, relates to, or is in response to a party's exercise of First Amendment rights listed in the TCPA, that party "may file a motion to dismiss the legal action." TEX. CIV. PRAC. & REM. CODE. § 27.003 (listing rights of free speech, association, and petition); *see**Reyna v. Baldridge* , No. 04-14-00740-CV, 2015 WL 4273265, at *1 (Tex. App.-San Antonio July 15, 2015, no pet.) (mem. op.). The TCPA's dismissal procedure contains a burden-shifting framework to ensure the *603legal actions to which the TCPA applies have merit and are not brought to intimidate or silence those who exercise First Amendment rights listed in the TCPA. *See**Youngkin v. Hines* , No. 16-0935, 546 S.W.3d 675, 678-80, 2018 WL 1973661, at *2 (Tex. Apr. 27, 2018). However, the TCPA exempts several categories of legal actions from its dismissal procedure. § 27.010.

We review de novo the denial of a TCPA motion to dismiss and whether the parties satisfied their respective burdens as set out in the TCPA. *Reyna* , 2015 WL 4273265, at *2. In our review, we must "consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." § 27.006(a); *see**In re Lipsky* , 460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding). We view the pleadings and evidence in the light most favorable to the nonmovant. *See**Spencer v. Overpeck* , No. 04-16-00565-CV, 2017 WL 993093, at *4 (Tex. App.-San Antonio Mar. 15, 2017, pet. denied) (mem. op.).

**THE INSURANCE CONTRACT EXEMPTION IN SECTION 27.010(d)**

Dr. Elkins argues we should affirm the trial court's order in its entirety because, even if her legal actions relate to Pyles's and the James Appellants' exercise of their First Amendment rights, the TCPA does not apply because her legal actions fall under the insurance contract exemption. The TCPA exempts "a legal action ... arising out of an insurance contract." § 27.010(d). The TCPA broadly defines a "legal action," which can mean a "lawsuit" or a "cause of action." § 27.001(6); *accord**D Magazine Partners, L.P. v. Rosenthal* , 529 S.W.3d 429, 442 (Tex. 2017). The TCPA does not further define "cause of action," but "a 'cause of action' means the fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief." *Loaisiga v. Cerda* , 379 S.W.3d 248, 262 (Tex. 2012) (internal quotation marks omitted). It is undisputed that this case involves the Practice's insurance policy with Travelers and Dr. Elkins has alleged causes of action. The only dispute about the insurance contract exemption is whether the alleged facts entitling Dr. Elkins to relief (i.e. her causes of action) are legal actions "arising out of" the insurance policy with Travelers.

**A. Legal Actions "Arising Out of an Insurance Contract"**

Whether Dr. Elkins's causes of action arise out of the insurance contract requires construing the phrase "arising out of" in the TCPA. We review issues of statutory construction de novo. *Adams v. Starside Custom Builders, LLC* , No. 16-0786, 547 S.W.3d 890, 893-95, 2018 WL 1883075, at *3 (Tex. Apr. 20, 2018). "Our fundamental goal when reading statutes is to ascertain and give effect to the Legislature's intent." *Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n* , 518 S.W.3d 318, 325 (Tex. 2017) (internal quotation marks omitted). "[T]he [TCPA]'s plain language is the surest guide to the Legislature's intent." *Sullivan v. Abraham* , 488 S.W.3d 294, 299 (Tex. 2016) (internal quotation marks omitted). We must presume the Legislature purposefully chose the statute's language, intending each word used to have a purpose. *Cadena Comercial USA Corp.* , 518 S.W.3d at 325-26. Statutory words and phrases must be considered "in the context of the statute as a whole." *Id.* at 326.

*1. Pyles's & the James Appellants' Construction is Contrary to the TCPA's Text*

Pyles and the James Appellants argue that Dr. Elkins's causes of action do not "arise out of" an insurance contract *604because Dr. Elkins is not seeking a remedy provided for in the insurance policy, specifically insurance benefits, and her theories of liability sound in common-law torts, not in contract. These arguments are contrary to the TCPA's plain language in at least four ways. First, in the insurance contract exemption, the Legislature used the term "legal action," which is defined as "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." § 27.001(6). The definition of "legal action" does not contain the term "remedy." A "cause of action" consists of the operative facts entitling the plaintiff to the relief sought. *See**Loaisiga* , 379 S.W.3d at 262. The relief sought is the "remedy." BLACK'S LAW DICTIONARY 1320 (8th ed. 2006) (defining "remedy" as "legal or equitable relief"). Thus, under the insurance contract exemption, if the **facts** comprising a cause of action arise out of an insurance contract, the **remedy** requested need not arise out of the insurance contract. *See* §§ 27.001(6), 27.010(d).

Second, the insurance contract exemption in 27.010(d) contrasts with section 27.010(c), which exempts legal actions "**seeking recovery for** bodily injury, wrongful death, or survival." § 27.010(c) (emphasis added). The insurance contract exemption in section 27.010(d) does not exempt legal actions "seeking recovery for benefits under" an insurance contract. Similarly, the insurance contract exemption in 27.010(d) contrasts with other statutory provisions, such as the Texas Tort Claims Act, that refer to the nature of exempted claims. *See, e.g.* , TEX. CIV. PRAC. & REM. CODE § 101.057(2) (exempting claims "arising out of assault, battery, false imprisonment, or any other intentional tort"). The insurance contract exemption simply contains no reference to the nature of the exempted claims. Thus, the plain language of section 27.010(d) exempts legal actions "arising out of" an insurance contract, regardless of whether the legal action is "seeking recovery for benefits under" an insurance contract and regardless of whether the nature of the claim sounds in tort or in contract. *See* § 27.010(d).

Third, Pyles's and the James Appellants' argument suggests that the insurance contract exemption requires a legal action to be "based on" or "brought under" an insurance contract. But in the insurance contract exemption, the Legislature used the phrase "arising out of." § 27.010(d). The qualifying phrase "arising out of" in the insurance contract exemption contrasts with other phrases in the TCPA the Legislature purposefully used to qualify the term "legal action." In sections 27.003(a) and 27.005(b), the Legislature used the phrases "relates to," "based on," and "in response to" to qualify "legal action." §§ 27.003(a), 27.005(b). And in section 27.010(d), the Legislature used the phrase "brought under" the Insurance Code to qualify "legal action." 27.010(d). The text of the TCPA as a whole demonstrates the Legislature knew how to use narrower qualifying phrases, and could have limited the insurance contract exemption to legal actions "brought under" or "based on" an insurance contract. Conversely, the Legislature declined to use a broader qualifying phrase like "relates to." In the insurance contract exemption, the Legislature purposefully used the phrase "arising out of" and not "based on," "brought under," or "relates to." *See**Cadena Comercial USA Corp.* , 518 S.W.3d at 325-26. Adopting Pyles's and the James Appellants' position would require us to legislate from the bench by judicially modifying the TCPA's text, which we may not do. *See**Castleman v. Internet Money Ltd.* , No. 17-0437, 546 S.W.3d 684, 687-88, 2018 WL 1975039, at *3 (Tex. Apr. 27, 2018) ;

*605*Critz v. Critz* , 297 S.W.3d 464, 472 (Tex. App.-Fort Worth 2009, no pet.).

Fourth, a narrow construction of "arising out of" in section 27.010(d)'s insurance contract exemption would conflict with how Texas courts have construed "arise out of" in section 27.010(b)'s commercial speech exemption. The commercial speech exemption provides:

> (b) This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct **arises out of** the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

§ 27.010(b) (emphasis added). Other courts of appeals have construed "arises out of" in section 27.010(b) as relating to the defendant's motives in making the actionable statement or engaging in the actionable conduct. *See**Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.* , 416 S.W.3d 71, 88-89 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).1 Our sister courts have thus concluded the Legislature used "arise out of" in the TCPA broadly to include statements and conduct ancillary to a commercial transaction. They have not construed "arising out of" narrowly to mean a statement or conduct that is based on or that comprises the commercial transaction itself. Thus, Pyles's and the James Appellants' construction would require arbitrarily giving different meanings to the same phrase used in the same section of the same statute.

*2. The Plain Meanings of "Arising Out Of" and "Insurance Contract"*

Although the TCPA does not define the qualifying phrase "arising out of," we are not without guidance. When a term is not statutorily defined, we typically look first to dictionary definitions to ascertain the term's plain meaning. *City of Richardson v. Oncor Elec. Delivery Co. LLC* , 539 S.W.3d 252, 261 (Tex. 2018). The plain meaning of "arise" is "[t]o originate; to stem (from)" or "[t]o result (from)." BLACK'S LAW DICTIONARY 115. The different definitions of "arise" could support applying different tests that the Supreme Court of Texas has articulated in different contexts. When construing insurance contracts, the supreme court "has held that 'arise out of' means that there is simply a 'causal connection or relation,' which is interpreted to mean that there is but for causation, though not necessarily direct or proximate causation." *Utica Nat'l Ins. Co. of Tex. v. Am. Indem. Co.* , 141 S.W.3d 198, 203 (Tex. 2004) (internal citation omitted).2 Under the Texas Tort Claims Act, the supreme court has construed "arise out of" as "requir[ing] a certain nexus," or connection. *Delaney v. Univ. of Houston* , 835 S.W.2d 56, 59 (Tex. 1992). Under the Worker's Compensation statute, the supreme court has construed "arise out of" synonymously with "originating in."

*606*State Office of Risk Mgmt. v. Martinez* , 539 S.W.3d 266, 276 (Tex. 2017). And, as previously noted, our sister courts have construed "arising out of" in the TCPA's commercial speech exemption as requiring that we consider the defendant's motives. *See, e.g.* , *Newspaper Holdings, Inc.* , 416 S.W.3d at 88-89.

The TCPA does not define "insurance contract," but the plain meaning of the term undoubtedly includes an insurance policy or agreement that governs the legal rights of and relationship between an insurer and insured regarding insurance benefits. *See* BLACK'S LAW DICTIONARY 814 (defining insurance, generally, as a contract in which one party promises to indemnify another against certain risks). We further note the Legislature's use of the term "insurance contract," as used in the phrase "a legal action ... arising out of an insurance contract," does not limit our consideration only to whether there is, or is not, an insurance contract. We are aware of no cognizable cause of action for the mere existence of an insurance contract. Other facts (e.g., facts showing a breach or fraud), in addition to the insurance contract, are necessary to allege a cognizable cause of action involving an insurance contract. When considering whether a legal action "aris[es] out of an insurance contract," we therefore must consider not only the insurance contract, but also other alleged facts involving the insurance contract. *See**Loaisiga* , 379 S.W.3d at 262 (explaining a "cause of action" means the underlying facts).

In sum, the TCPA's text indicates the Legislature did not intend "arising out of" in the insurance contract exemption to be as broad as "relates to." *Compare* § 27.010(d), *with* §§ 27.003(a), 27.005(b). Thus, "arising out of" in the insurance contract exemption requires something more than the mere presence of an insurance contract or a cause of action merely having any relationship to an insurance contract. But "arising out of" in the insurance contract exemption requires something less than a cause of action being "based on" or "brought under," "seeking benefits under," or "seeking recovery for breach of" an insurance contract. Consistent with how the supreme court and our sister courts have construed "arising out of" in various contexts, we construe "arising out of an insurance contract" as requiring that the insurance contract be a "but-for" or motivating cause of the alleged facts entitling the plaintiff to relief, or that the alleged facts entitling the plaintiff to relief have a nexus to or originate in a contractual relationship between an insurer and an insured for insurance benefits.

Our construction is consistent with the obvious purpose of the 2013 amendments to the TCPA, which was to exempt from the TCPA's dismissal procedure more legal actions directly involving the business of insurance. *See**Fort Worth Transp. Auth. v. Rodriguez* , No. 16-0542, 547 S.W.3d 830, 844 n.6, 2018 WL 1976712, at *9 n.6 (Tex. Apr. 27, 2018) ("[Legislative] history may be appropriate to give context to [courts'] construction."). In 2013, the Legislature broadened the TCPA's exemptions for legal actions involving the business of insurance in two ways. First, the Legislature enlarged the commercial speech exemption to cover more legal actions related to the business of insurance. H.B. 2935, 83rd Leg. (Tex. 2013), at § 3 (expanding the commercial speech exemption to include "insurance services"). Second, in the 2013 amendments, the Legislature exempted from the TCPA two additional categories of legal actions: those "brought under the Insurance Code" and those "arising out of an insurance contract." *See id.* The TCPA's legislative history reinforces the textual indicia of the Legislature's intent to exempt *607from the TCPA's dismissal procedure additional categories of legal actions directly involving the business of insurance. *See* § 27.010(d); *Sullivan* , 488 S.W.3d at 299 (stating the best indication of legislative intent is the TCPA's text).3 We now turn to applying these principles to Dr. Elkins's legal actions.

**B. Application**

Applying our construction of the phrase "arising out of an insurance contract" to this case, we conclude: (1) to the extent Dr. Elkins's causes of action involve the insurance claim made under the insurance policy, they are "legal actions arising out of an insurance contract"; and (2) to the extent Dr. Elkins's causes of action involve appellants' statements to the SAPD, Dr. Elkins did not satisfy her burden to establish they arise out of the insurance policy.

Before considering Dr. Elkins's causes of action, we note a significant difference between the two TCPA motions filed in the trial court. Pyles's TCPA motion sought dismissal of all of Dr. Elkins's causes of action against her. But the James Appellants' TCPA motion sought a dismissal of Dr. Elkins's causes of action only to the extent those legal actions involved their statements to the SAPD. In other words, the James Appellants have never posited that the insurance contract exemption does not apply to Dr. Elkins's causes of action involving the insurance claim. Moreover, the TCPA requires us "to treat any claim by any party on an individual and separate basis." *Better Bus. Bureau of Metro. Dall., Inc. v. Ward* , 401 S.W.3d 440, 443 (Tex. App.-Dallas 2013, pet. denied). We therefore address separately Dr. Elkins's causes of action involving the insurance claim and her causes of action involving appellants' statements to the SAPD. *See id.*4

*1. The Insurance Claim*

We first consider Dr. Elkins's causes of action against Pyles that involve the insurance claim, which contained Pyles's Fraud Examination Report. According to Dr. Elkins's pleadings and evidence, Pyles prepared the Fraud Examination Report for the primary purpose of submitting the insurance claim. Pyles did not dispute Dr. Elkins's allegations and evidence. Instead, Pyles's motion states, "The Practice is insured by Travelers and filed a claim with Travelers." Her affidavit states, "Travelers was provided with a copy of the Fraud Examination Report," and "Travelers ultimately paid the Practice on its insurance claim related to Dr. [Elkins]'s misappropriation."

According to the pleadings and evidence, Pyles would not have made the complained-of statements in the insurance claim if there were no insurance policy, and the insurance contract motivated Pyles's allegedly defamatory, disparaging, and damaging statements that Dr. Elkins committed fraud and theft. The insurance policy has a close nexus to the facts Dr. *608Elkins alleges entitle her to relief; in addition to the insurance contract being a but for and motivating cause of the insurance claim, the complained-of statements to Travelers comprised the insurance claim that invoked an insured's legal rights under an insurance contract. The transaction was pursuant to the insurance policy, and the insurer-insured relationship was the context in which the complained-of statements were made. Thus, those statements originated in the relationship between an insured and insurer under a contract for insurance benefits. Furthermore, it would be nearly impossible for Dr. Elkins to explain her case to a jury without reference to the insurance policy, and she would be entitled to rely on the insurance policy as proof of her claims. The insurance policy provides a theory of the defendants' motives for publishing allegedly false statements; explains why those statements were made to Travelers; and explains Travelers' response of further investigating Dr. Elkins, which Dr. Elkins complains contributed to her damages.

This case can be contrasted with *Tervita, LLC v. Sutterfield* , 482 S.W.3d 280 (Tex. App.-Dallas 2015, pet. denied). In *Tervita* , the plaintiff alleged his employer retaliated against him for filing a worker's compensation claim and made a false representation to him about what benefits were available to him under the insurance policy. *See**id.* at 282. The complained-of statement in *Tervita* did not originate in any communication between an insurer and insured under an insurance policy; the statement originated in the context of an employer-employee relationship and merely related to an insurance policy. Although Pyles relies on *Tervita* to support her position, the *Tervita* court did not define the phrase "arising out of" or state what test courts should apply to determine whether a legal action arises out of an insurance contract. *Id.* at 285-86. We are not persuaded that *Tervita* is inconsistent with our holding or requires a different outcome in this case.5

We hold the insurance policy is a but for and motivating cause of the insurance claim, and that the insurance claim had a nexus to the insurance policy and originated in the contractual relationship between an insurer and an insured for insurance benefits. Thus, Dr. Elkins's causes of action against Pyles involving the insurance claim are legal actions "arising out of an insurance contract." § 27.010(d). We must therefore affirm the trial court's order as to Dr. Elkins's causes of action against Pyles involving the Fraud Examination Report and the insurance claim.

*2. The SAPD Report*

Pyles and the James Appellants argue Dr. Elkins failed to prove their statements to the SAPD arose out of the insurance policy. We agree. Dr. Elkins pled in her response to the TCPA motions that the only reason Pyles and the James Appellants made statements to SAPD is because the insurance policy required them to do so. However, Dr. Elkins had the burden to establish the applicability of the insurance-contract exemption. *See**Tervita, LLC* , 482 S.W.3d at 282. Dr. Elkins *609did not produce the insurance contract, did not provide any other evidence to support her allegation about the insurance policy, and expressly stated her allegation about the insurance policy was based only "on information and belief," which amounts to no evidence. *See**Day Cruises Mar., L.L.C. v. Christus Spohn Health Sys.* , 267 S.W.3d 42, 54 (Tex. App.-Corpus Christi 2008, pet. denied). We hold Dr. Elkins failed to satisfy her burden to establish that the insurance exemption applies to her causes of action involving appellants' statements to the SAPD.

**LEGAL ACTIONS NOT EXEMPTED BY THE TCPA**

Other than the insurance contract exemption, Dr. Elkins did not dispute in the trial court, and does not dispute on appeal, that the TCPA otherwise applies to her legal actions against Pyles and the James Appellants. On appeal, Pyles and the James Appellants argue their statements to SAPD, even if false, were an exercise of their right of petition, a First Amendment right listed in the TCPA. We agree. *See**Murphy USA, Inc. v. Rose* , No. 12-15-00197-CV, 2016 WL 5800263, at *3-*4 (Tex. App.-Tyler Oct. 5, 2016, no pet.) (mem. op.) (TCPA applies to statements made to police). We therefore proceed to consider whether Dr. Elkins met her burden under the TCPA.

If the TCPA applies, the plaintiff has the burden to present clear and specific evidence of a prima facie case for each element of each claim covered by the TCPA. *See**In re Lipsky* , 460 S.W.3d at 586. Clear and specific evidence of a prima facie case for an element "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." *Id.* at 590. "It is the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." *Id.* (internal quotation marks omitted). The TCPA "does not impose a higher burden of proof than that required of the plaintiff at trial." *Id.* at 591. When reviewing the record, we consider the pleadings and evidence in the light most favorable to Dr. Elkins. *See**Spencer* , 2017 WL 993093, at *4.

In some of the following subsections, we discuss the evidence of each element of each claim as the evidence pertains to Dr. James, Jean, and Pyles individually. *See**Ward* , 401 S.W.3d at 443. On appeal, the James Appellants do not challenge the Practice's vicarious liability for the acts of Dr. James, Jean, or Pyles. We therefore address each claim based on the individual's conduct and conclude with a summation of the claims the trial court should have dismissed and the claims the trial court properly did not dismiss.

**A. Intentional Infliction of Emotional Distress**

"To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe." *Hoffmann-LaRoche Inc. v. Zeltwanger* , 144 S.W.3d 438, 445 (Tex. 2004).

Pyles and the James Appellants challenge the "extreme and outrageous" element of Dr. Elkins's intentional infliction of emotional distress claims. "Whether a defendant's conduct is 'extreme and outrageous' is a question of law." *Bradford v. Vento* , 48 S.W.3d 749, 758 (Tex. 2001). "The mere fact that a defendant's conduct is tortious or otherwise wrong does not, standing alone, necessarily render [the conduct] 'extreme and outrageous.' " *Id.* Moreover, the "extreme *610and outrageous conduct" element must "not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines." *See**Standard Fruit & Vegetable Co., Inc. v. Johnson* , 985 S.W.2d 62, 68 (Tex. 1998) ; *see also**Creditwatch, Inc. v. Jackson* , 157 S.W.3d 814, 816 (Tex. 2005) ("intentional infliction of emotional distress is a 'gap-filler' tort never intended to supplant or duplicate existing statutory or common-law remedies").

We hold that although Pyles's and the James Appellants' alleged conduct of making false statements to the police may be considered wrong and tortious, the alleged conduct does not exceed conduct covered by other torts. *See**Draker v. Schreiber* , 271 S.W.3d 318, 325 (Tex. App.-San Antonio 2008, no pet.) (intentional infliction of emotional distress claim unavailable where gravamen of plaintiff's claim was defamation); *Thrift v. Hubbard* , 974 S.W.2d 70, 77-81 (Tex. App.-San Antonio 1998, pet. denied) (explaining malicious criminal prosecution is a tort available to recover for emotional distress when a private individual makes a false police report resulting in prosecution). We therefore hold Dr. Elkins failed to meet her burden regarding her intentional infliction of emotional distress claims.6

**B. Defamation**

Pyles and the James Appellants contend Dr. Elkins's defamation claims must be dismissed because Dr. Elkins failed to present clear and specific evidence that they made the allegedly defamatory statements with "actual malice." "Defamation's elements include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases." *In re Lipsky* , 460 S.W.3d at 593. The requisite degree of fault depends on the status of the plaintiff; "[a] private individual need only prove negligence, whereas a public figure or official must prove actual malice." *Id.* However, even where the plaintiff is a private individual, "[i]f the circumstances support application of [a] qualified privilege, the plaintiff must prove that the defendant acted with actual malice, rather than mere negligence, in publishing the statement." *Espinosa v. Aaron's Rents, Inc.* , 484 S.W.3d 533, 543 (Tex. App.-Houston [1st Dist.] 2016, no pet.).

Pyles and the James Appellants argue the requisite degree of fault Dr. Elkins must prove is actual malice because reporting a crime to the police is qualifiedly privileged, and a plaintiff must show actual malice to overcome the qualified privilege. Dr. Elkins does not argue on appeal that the statements to SAPD are not qualifiedly privileged, and during the hearing on the TCPA motions, Dr. Elkins "agree[d] that the qualified privilege applies in talking to police." We agree the statements to SAPD are qualifiedly privileged. *See**Pease v. Bembry* , No. 03-02-00640-CV, 2004 WL 1574243, at *2 (Tex. App.-Austin July 15, 2004, no pet.) (mem. op.) (reporting crime is qualifiedly privileged). We therefore proceed to analyze whether Dr. Elkins met her burden regarding the actual malice element.

"Actual malice in this context does not mean bad motive or ill will but *611rather knowledge of, or reckless disregard for, the falsity of a statement." *Greer v. Abraham* , 489 S.W.3d 440, 443 (Tex. 2016). To establish reckless disregard, a plaintiff must show the defendant "entertained serious doubts as to the truth of his [statement]." *Huckabee v. Time Warner Entm't Co. L.P.* , 19 S.W.3d 413, 420 (Tex. 2000) (quoting *St. Amant v. Thompson* , 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ). "[T]he mere failure to investigate the facts, by itself, is no evidence of actual malice." *Bentley v. Bunton* , 94 S.W.3d 561, 595 (Tex. 2002).

As to actual malice, Dr. Elkins's sole argument on appeal is, and her primary contention in the trial court was, that Dr. James, Jean, and Pyles reviewed only three years of her payment records and should have considered records during the entire time she worked for the Practice. We agree with Pyles and the James Appellants that an inadequate investigation is alone insufficient to show actual malice. *See id.* However, our standard of review is de novo, and we must determine whether appellants have demonstrated that the trial court committed reversible error based on the pleadings and evidence before the trial court when the trial court made its ruling. *See**Reyna* , 2015 WL 4273265, at *2. Applying this standard, we conduct a de novo review of the pleadings and evidence of actual malice that was before the trial court. *See id.*

*1. Dr. James*

Dr. Elkins produced Dr. James's written statement to the SAPD, wherein Dr. James states Dr. Elkins was entitled under her employment contract only to 30% of her net production and that she stole money by taking 30% of gross production. Dr. Elkins produced her affidavit in which she swore her employment contract provided she was to be paid 30% of gross production. She also produced an email from Jeff Barrish, the Practice's accountant, stating Dr. Elkins's compensation package provides "she receives 30% ... of production." Dr. Elkins's evidence, viewed in a light most favorable to her, shows Dr. James falsely stated to SAPD that Dr. Elkins was to be paid only 30% of net production. *See**Spencer* , 2017 WL 993093, at *4. We therefore consider whether Dr. Elkins produced clear and specific evidence that, when Dr. James stated that Dr. Elkins was to be paid only 30% of net production under her employment contract, Dr. James either knew his statement was false or had a reckless disregard for the falsity of his statement.

Dr. Elkins presented evidence that the employment contract was one paragraph, Dr. James executed the contract by signing it (which Dr. James admits in his affidavit), the contract was given to Dr. James's attorney, and the contract mysteriously disappeared. Dr. James's affidavit states he hired Dr. Elkins. Furthermore, Pyles's and Jean's affidavits demonstrate they both relied on Dr. James's purported knowledge of what was in the employment contract. A jury could reasonably infer that Dr. James, who hired Dr. Elkins and signed her one-paragraph employment contract, actually knew the terms of Dr. Elkins's compensation under the contract. *See**El Paso Cty. v. Sunlight Enterps. Co., Inc.* , 504 S.W.3d 922, 930 (Tex. App.-El Paso 2016, no pet.) (holding signing contract raises inference of actual knowledge of terms).7

*612Furthermore, Dr. Elkins presented evidence that Dr. James reviewed her payment requests, signed her checks, and paid her 30% of gross production for twenty-three years, and that Dr. James paid another associate based on gross production and not net production, all of which could support an inference that Dr. James knew the terms of the employment contract. A jury reasonably could infer from this evidence, viewed in a light most favorable to Dr. Elkins, that Dr. James knew his statement to SAPD that the employment contract entitled Dr. Elkins only to 30% of net production was false or that he entertained serious doubts about the truth of his statement.

Pyles and the James Appellants argue we must accept as true a proffered employment contract they attached to the joint motion to reconsider. In her response to the joint motion, Dr. Elkins produced evidence showing the proffered contract was a forgery. We hold the evidence attached to the joint motion and Dr. Elkins's response is outside of our scope of review. No issue has been raised challenging the trial court's denial of the joint motion to reconsider. *See**Pritchett v. Gold's Gym Franchising, LLC* , No. 05-13-00464-CV, 2014 WL 465450, at *2 n.2 (Tex. App.-Dallas Feb. 4, 2014, pet. denied) (mem. op.). Moreover, there is no affirmative indication in the transcript of the hearing on the joint motion, or in the trial court's order denying the joint motion, that the trial court reconsidered the merits of the TCPA motions in light of the proffered employment contract. *Cf.**Tooker v. Alief Indep. Sch. Dist.* , 522 S.W.3d 545, 553-54 (Tex. App.-Houston [14th Dist.] 2017, no pet.).8 The James Appellants also argue Dr. James could have had a "conflicting interpretation" of the employment contract's payment terms, but that is an issue for the jury to decide. *See**Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.* , 940 S.W.2d 587, 589 (Tex. 1996) (if a contract is subject to two reasonable interpretations, "the contract is ambiguous, which creates a fact issue on the parties' intent"). Holding otherwise would require us to use the TCPA to deprive Dr. Elkins of her constitutional right to try her meritorious claims to a jury, which we may not do. *See* § 27.002 (stating the TPCA's purpose includes "protect[ing] the rights of a person to file meritorious lawsuits.").

*b. Jean & Pyles*

Our holding that Dr. Elkins presented clear and specific evidence of actual malice as to Dr. James is based primarily on him having signed the employment contract with Dr. Elkins, executed another employment contract with similar compensation terms, and paid Dr. Elkins 30% of gross production for over twenty-three years. Dr. Elkins produced no evidence that Jean or Pyles knew the terms of the employment contract. Instead, as Dr. Elkins represents to this court in her brief, Jean and Pyles "simply took the word of Dr. James that the Contract ... provided that [she] was to be paid on collections or net production." Thus, Dr. Elkins did not *613present clear and specific evidence showing Jean or Pyles knew their statements were false or entertained serious doubts about the truth of their statements to the SAPD.

**C. Business Disparagement**

"To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about [her], (2) with malice, (3) without privilege, (4) that resulted in special damages[ ] to the plaintiff." *In re Lipsky* , 460 S.W.3d at 592 (quoting *Forbes Inc. v. Granada Biosciences, Inc.* , 124 S.W.3d 167, 170 (Tex. 2003) ).

Jean and Pyles challenge the malice element of Dr. Elkins's business disparagement claims. The malice element of a business disparagement claim may be proven by evidence that the defendant made a statement with knowledge of its falsity, reckless disregard, ill will, or intent to interfere with the economic interest of the plaintiff. *Hurlbut v. Gulf Atl. Life Ins. Co.* , 749 S.W.2d 762, 766 (Tex. 1987). As previously discussed, Dr. Elkins failed to present evidence that Jean or Pyles made their statements to the SAPD with knowledge of falsity or with reckless disregard for the falsity of the statements. As to ill will and intent to interfere with Dr. Elkins's economic interests, Dr. Elkins does not cite us to any evidence, and we have found no evidence in our independent review of the record, supporting an inference that Jean or Pyles had ill will toward her or intended to interfere with her economic interests by reporting the findings of the fraud investigation to the SAPD. We therefore conclude Dr. Elkins failed to meet her burden as to the business disparagement claims against Jean and Pyles.

Dr. James challenges the causation element of Dr. Elkins's business disparagement claim against him. The causation element of a business disparagement claim requires a plaintiff to prove the disparaging communication "played a substantial part in inducing third parties not to deal with the plaintiff, resulting in a direct pecuniary loss that has been realized or liquidated, such as specific lost sales, loss of trade, or loss of other dealings." *Astoria Indus. of Iowa, Inc. v. SNF, Inc.* , 223 S.W.3d 616, 628 (Tex. App.-Fort Worth 2007, pet. denied) (op. on reh'g). Dr. Elkins swore in her affidavit that she has suffered emotional distress and lost wages. But her affidavit does not attribute her lost wages or any pecuniary loss to her being fired, to the insurance claim, or to appellants' statements to the SAPD. Her affidavit also does not identify any sales, trade, or other dealings lost because of Dr. James's statements to the SAPD. We hold Dr. Elkins failed to produce clear and specific evidence regarding the causation element of her business disparagement claim against Dr. James, and therefore failed to meet her burden. *See id.*

**D. Civil Conspiracy**

To recover for civil conspiracy, a plaintiff must show "(1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result." *First United Pentecostal Church of Beaumont v. Parker* , 514 S.W.3d 214, 222 (Tex. 2017). "[A] defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable." *Tilton v. Marshall* , 925 S.W.2d 672, 681 (Tex. 1996).

*614The James Appellants challenge only the existence of an underlying tort. In the trial court, the James Appellants did not argue that the TCPA applied to Dr. Elkins's civil conspiracy claims against them. They therefore did not establish the TCPA's applicability to these claims in the trial court or preserve this issue for appeal. *See**Avery v. Baddour* , No. 04-16-00184-CV, 2016 WL 4208115, at *6 (Tex. App.-San Antonio Aug. 10, 2016, pet. denied) (mem. op.). Furthermore, we have held that there is an underlying tort-a defamation claim against Dr. James-and Dr. Elkins seeks to hold the Practice and Jean liable for this tort. Based on the foregoing, we overrule the James Appellants' issue as to Dr. Elkins's civil conspiracy claims.

Pyles challenges the "meeting of the minds" element of Dr. Elkins's civil conspiracy claim, as she did in the trial court. The only remaining underlying tort is Dr. Elkins's defamation claim against Dr. James based on actual malice. As we previously noted, Dr. Elkins failed to present evidence that Pyles also acted with actual malice and presented no other evidence from which a jury could reasonably infer Dr. James and Pyles had a meeting of the minds to defame Dr. Elkins with actual malice. We hold Dr. Elkins failed to meet her burden as to her civil conspiracy claim against Pyles.

**E. Conclusion as to Dr. Elkins's Legal Actions**

The trial court properly denied Pyles's TCPA motion to dismiss Dr. Elkins's causes of action against her for the statements published in the insurance claim, which included the Fraud Examination Report. The trial court also properly denied the TCPA motions regarding Dr. Elkins's defamation claims against Dr. James and the Practice, through its alleged, unchallenged vicarious liability. However, the trial court erred by not dismissing Dr. Elkins's claims: (1) against Dr. James, individually and as an agent of the Practice, for business disparagement and intentional infliction of emotional distress, to the extent those claims involve Dr. James's statements to the SAPD; (2) against Jean, individually and as an agent of the Practice, for defamation, business disparagement, and intentional infliction of emotional distress, to the extent those claims involve Jean's statements to the SAPD; and (3) against Pyles, individually and as an agent of the Practice, for defamation, business disparagement, intentional infliction of emotional distress, and civil conspiracy, to the extent those claims involve Pyles's statements to the SAPD.9

**CONCLUSION**

We reverse the trial court's order denying the TCPA motions in part and render an order dismissing the following legal actions: (1) to the extent Dr. Elkins's causes of action against Pyles, individually and as an agent of the Practice, involve Pyles's statements to the SAPD, the claims of defamation, business disparagement, intentional infliction of emotional distress, and civil conspiracy; (2) to the extent Dr. Elkins's causes of action against Jean, individually *615and as an agent of the Practice, involve Jean's statements to the SAPD, the claims of defamation, business disparagement, and intentional infliction of emotional distress; and (3) to the extent Dr. Elkins's causes of action against Dr. James, individually and as an agent of the Practice, involve Dr. James's statements to the SAPD, the claims for business disparagement and intentional infliction of emotional distress. We remand this case to the trial court for a determination of attorneys' fees and costs as to these legal actions. We affirm the remainder of the trial court's order denying the TCPA motions.

Concurring and Dissenting Opinion by: Marialyn Barnard, Justice

**CONCURRING AND DISSENTING OPINION**

Marialyn Barnard, Justice

I concur in the portions of the majority opinion and judgment reversing the trial court's order and rendering judgment in favor of appellants Robert B. James, DDS, Inc., A Texas Corporation, Robert B. James, DDS, Individually, Jean James, Individually,1 and Alexis Mei Pyles, Individually. However, because I believe the trial court erred in refusing to grant, in their entirety, the motions to dismiss filed by appellants, I respectfully dissent to the portions of the majority opinion and judgment affirming the trial court's order. I would reverse the trial court's order of dismissal in its entirety, render judgment dismissing the claims for defamation, business disparagement, intentional infliction of emotional distress, and conspiracy against all appellants, and remand the matter for a determination of attorneys' fees and costs.

**BACKGROUND**

Dr. James operated a pediatric dental practice in San Antonio, Texas. In 1991, he hired Dr. Elkins, a licensed pediatric dentist, to work in his practice. The parties agree they signed a written contract ("the Contract"). Dr. Elkins alleges the terms of her employment required that, among other things, she be paid a percentage of her gross production. This allegation is disputed by Dr. James and the other appellants, who contend she was to be paid a percentage of her net production, i.e., a percentage of collections. To collect payment, Dr. Elkins would submit a commission-payment request based on her production. To allow her to submit the information, Dr. Elkins had access to the practice's receivables. After calculating her percentage of production, and subtracting expenses and prior payments, Dr. Elkins would submit her commission statement to the practice's payroll provider. Dr. James would then sign her paycheck.

It is undisputed that over the course of Dr. Elkins's employment, Dr. James increased her managerial responsibilities with the hope that Dr. Elkins would ultimately purchase the practice when he retired. In 2014, they began discussing that prospect. However, because there was a disagreement over the valuation of the practice, in November 2014, Dr. Elkins declined the proffered purchase. According to Dr. James, he then decided to market the practice to other potential purchasers. To that end, according to Dr. James, he asked his wife Jean James to begin organizing the practice's business records in *616order to market it for sale. Jean claimed that when she began reviewing the books and records, she discovered Dr. Elkins had submitted and received payments based on gross production and had charged write-offs against Dr. James's production as opposed to her own. Jean brought these issues to Dr. James's attention.

Dr. James claimed that thereafter, he instructed Jean and an administrator for the practice, Alexis Mei Pyles, to investigate Dr. Elkins's activities with regard to the practice's finances. However, Dr. Elkins alleged the purpose of the investigation was retaliatory and based on her refusal to purchase the practice. She claimed the goal of the investigation was to permit the practice to submit an insurance claim for employee theft to the practice's insurance carrier, Travelers Casualty Insurance Company of America, in hopes of procuring a payment "in excess of $500,000.00."

According to Jean and Pyles, they reviewed practice financial documents for a three-year period-from 2011 through 2014, and interviewed current and former employees as well as other relevant witnesses. They claimed their investigation showed Dr. Elkins had been overpaid by more than $300,000.00 during the 2011-2014 period because, among other financial misconduct, she had submitted payment requests based on a percentage of gross production as opposed to the contractually mandated net production.2 At Dr. James's behest, Pyles prepared a report summarizing the findings made by Pyles and Jean during their investigation. This report was entitled "Fraud Examination Report" ("FRE").

Dr. James claimed that as a result of the investigative findings, he terminated Dr. Elkins in January 2015. The practice submitted a claim to Travelers, which included a copy of the FRE. Travelers paid the practice $25,000.00-policy limits. In addition, Dr. James authorized Jean and Pyles to contact the San Antonio Police Department ("SAPD") about the alleged financial improprieties; Dr. Elkins claimed "upon information and belief" that Travelers required the matter be reported to law enforcement. SAPD prepared a police report. Dr. James, Jean, and Pyles provided written statements to SAPD. The record also shows Jean spoke with representatives from the Bexar County District Attorney's Office, urging that Dr. Elkins be prosecuted. Ultimately, Dr. Elkins was indicted in November 2016 for two counts of misapplication of fiduciary property.

In January 2017, and as is relevant to this appeal, Dr. Elkins sued the practice, Dr. James, Jean, and Pyles for defamation, business disparagement, intentional infliction of emotional distress ("IIED"), and conspiracy.3 Dr. Elkins's claims were *617based on statements made in the FRE report and to SAPD and Travelers regarding Dr. Elkins's alleged malfeasance. In total, Dr. Elkins sought compensatory damages of more than $11,000,000.00 and punitive damages of almost $35,000,000.00. In response to the lawsuit, Dr. James, Jean, and the practice filed a partial motion to dismiss pursuant to section 27.003 of the TCPA in which they sought dismissal of Dr. Elkins's claims for defamation, business disparagement, and intentional infliction of emotional distress. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West 2015). Pyles filed a separate motion to dismiss under the TCPA. *See id.* She too sought to dismiss the claims for defamation, business disparagement, IIED, as well as conspiracy-the only claims lodged against her. In both motions, the parties alleged Dr. Elkins's claims should be dismissed because they fell within the TCPA, and Dr. Elkins had failed to produce clear and specific evidence on the elements of her claims.

After Dr. Elkins filed a response to the motions, the trial court held a hearing. Thereafter, the trial court denied both motions to dismiss. James and Pyles asked the trial court to reconsider based on newly discovered evidence-specifically the previously misplaced employment contract between the practice and Dr. Elkins. According to the movants, the Contract was discovered when the dentist who ultimately purchased the practice in May 2015 was cleaning out items left behind by Dr. James. In response, Dr. Elkins alleged the contract was a forgery. The trial court denied the motion to reconsider. James perfected an appeal, as did Pyles. *See id.* § 51.014(a)(12) (West Supp. 2017) (permitting interlocutory appeals from orders denying motions to dismiss filed under the TCPA).

**ANALYSIS**

On appeal, James and Pyles contend the trial court erred in denying their motions to dismiss. They argue the trial court should have granted their motions because: (1) the claims asserted by Dr. Elkins fall within the TCPA; and (2) Dr. Elkins failed to produce clear and specific evidence establishing a prima facie case on the elements of her claims. James and Elkins also argue that if this court reverses the trial court's order, it must remand the matter to the trial court for an award of attorneys' fees and costs. In addition, in her brief, Dr. Elkins raises issues challenging the trial court's denial of her motion for discovery and motion for continuance in the event. She contends that if the court reverses the trial court's order, it should address these issues.

***Motion to Dismiss Under the TCPA***

*1. *Applicable Law**

The stated 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 and, at the same time, protect rights of a person to file meritorious lawsuits for demonstrable injury. *Id.* § 27.002. The TCPA was meant to "protect citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." *In re Lipsky* , 460 S.W.3d 579, 584, 586 (Tex. 2015) (orig. proceeding) (citing House Comm. On Judiciary & Civil Jurisprudence, Bill Analysis, Tex. HB 2973, 82nd Leg., R.S. (2011) ). To that end, the TCPA provides for the expedited dismissal of a legal action that implicates a defendant's First Amendment rights, including the right of free speech, the right to petition, and the right of association, when the plaintiff cannot establish a prima facie case on her claims.

*618*Id.* at 586 ; *Avery v. Baddour* , No. 04-16-00184-CV, 2016 WL 4208115, at *2 (Tex. App.-San Antonio Aug. 10, 2016, pet. denied) ; *see* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b), (c). The Legislature created a burden-shifting mechanism within the statute to expedite the dismissal of claims covered therein. *ExxonMobil Pipeline Co. v. Coleman* , 512 S.W.3d 895, 898 (Tex. 2017) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.003 ; *Lipsky* , 460 S.W.3d at 586 ). The filing of a motion to dismiss by "a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights" triggers this mechanism. *Lipsky* , 460 S.W.3d at 586.

The first step of the mechanism requires the movants to show by a preponderance of the evidence that the plaintiff's claims are based on, relate to, or are in response to the exercise of the movants' right to free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b) ; *Coleman* , 512 S.W.3d at 898 ; *Lipsky* , 460 S.W.3d at 586. The TCPA defines "exercise of the right of free speech" as "a communication4 made in connection with a matter of public concern." TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A "matter of public concern" includes issues 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 market place. *Id.* § 27.001(7). The "exercise of the right to petition" means communications relating to an array of judicial, administrative, and other governmental proceedings. *Lipsky* , 460 S.W.3d at 586-87 n.5 ; *see* TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4). The "exercise of the right of association" refers to a communication between those "who join together to collectively express, promote, pursue, or defend common interests." TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2).

If the movants are able to demonstrate the plaintiff's claims implicate one or more of the stated First Amendment rights, the burden shifts to the plaintiff-the party who brought the action-to establish "by clear and specific evidence a prima facie case for each essential element of" each claim in question. *Id.* at § 27.005(c) ; *see**Lipsky* , 460 S.W.3d at 587 ; *Coleman* , 512 S.W.3d at 899. If the plaintiff is unable to meet this burden, the trial court must dismiss her claims. *Lipsky* , 460 S.W.3d at 587. If the plaintiff is able to establish a prima facie case for each essential element of her claims, the burden then shifts back to the movants to prove by a preponderance of the evidence each essential element of a valid defense to the plaintiff's claims. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) ; *see**Coleman* , 512 S.W.3d at 899.

*2. *Standard and Scope of Review**

Courts conduct a de novo review of a trial court's denial of a TCPA motion to dismiss. *Avery* , 2016 WL 4208115, at *2 ; *Reyna v. Baldridge* , No. 04-14-00740-CV, 2015 WL 4273265, at *2 (Tex. App.-San Antonio July 15, 2015, no pet.) (mem. op.). In other words, courts review de novo whether the parties met their respective burdens under the TCPA. *Tervita, LLC v. Sutterfield* , 482 S.W.3d 280, 282 (Tex. App.-Dallas 2015, pet. denied) ; *Reyna* , 2015 WL 4273265, at *2 ; *see* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b), (c), (d). In making this determination, a court must "consider the pleadings and supporting *619and opposing affidavits stating the facts on which the liability or defense is based." TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) ; *Lipsky* , 460 S.W.3d at 587.

With regard to the plaintiff's burden to establish "by clear and specific evidence a prima facie case" for the essential elements of her claims, the TCPA defines neither "prima facie case" nor "clear and specific evidence." However, unlike "clear and specific evidence," a "prima facie case has a traditional legal meaning." *Lipsky* , 460 S.W.3d at 590. It refers to the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." *Id.* (quoting *In re E.I. DuPont de Nemours & Co.* , 136 S.W.3d 218, 223 (Tex. 2004) (per curiam) ). As for "clear and specific evidence," the supreme court has now held that it requires more than mere notice pleading, but "does not impose an elevated evidentiary standard or categorically reject circumstantial evidence," i.e., it does not impose a higher burden than that required at trial. *Id.* at 590-91.

*3. *Did James and Pyles Prove the TCPA Applies?**

As set out above, James and Pyles, as movants, were required to establish by a preponderance of the evidence that Dr. Elkins's claims are based on, relate to, or are in response to the exercise of their right to free speech, right to petition, or right of association. *See* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b) ; *Coleman* , 512 S.W.3d at 898 ; *Lipsky* , 460 S.W.3d at 586. I contend both James and Pyles met this burden, establishing the statements relied upon by Dr. Elkins for her defamation, business disparagement, and other claims fall within the TCPA.

James and Pyles asserted that all of Dr. Elkins's claims challenged in their respective motions to dismiss relate to their exercise of their First Amendment rights to free speech, i.e., their communications were made in connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3). More specifically, they asserted, and argue on appeal, the statements in the FRE report and to SAPD and Travelers about Dr. Elkins's alleged theft and misapplication of practice property were related to community well-being and the government. *Id.* § 27.001(7)(B), (C).5

The Texas Supreme Court has addressed what constitutes a matter of public concern. *See**Brady v. Klentzman* , 515 S.W.3d 878, 884 (Tex. 2017). According to the court, speech is a matter of public concern when the statements at issue can "be fairly considered as relating to any matter of political, social, or other concern to the community." *Id.* (quoting *Snyder v. Phelps* , 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) ). Matters of public concern include, among other things, commission of crime. *Id.* Thus, statements made for the purpose of reporting the commission of criminal offenses are related to community well-being or the government. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a), 27.005(b) ; *Coleman* , 512 S.W.3d at 898 ; *Lipsky* , 460 S.W.3d at 586.

*620The same is true when the report concerns acts that might subject the perpetrator to civil liability. *See* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b) ; *Coleman* , 512 S.W.3d at 898 ; *Lipsky* , 460 S.W.3d at 586. The gravamen of Dr. Elkins's claims are that James and Pyles made false statements to SAPD and Travelers that subjected her to criminal liability-and could subject her to civil liability. Reports that an individual has committed acts that might subject them to criminal or civil liability are issues relating to both community well-being and the government, particularly given that in *Coleman* , the supreme court held the TCPA does not require that the statements that form the basis of a plaintiff's claims specifically mention the public concern at issue, nor does it require more than a "tangential relationship" to the specific public concern. 512 S.W.3d at 900. The holding in *Coleman* suggests the TCPA's definition of exercise of free speech-as well as exercise of petition and association-extend beyond the parameters of expression protected by the First Amendment. *See id.* Thus, a court must not read the TCPA's definitions of "exercise of the right of free speech" and "matter of public concern" more narrowly than the ordinary meaning of the words as set forth in the statute. *See id.*

The statements made by James and Pyles were communications under the TCPA because they were oral or written. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1). The statements fall within the "exercise of the right of free speech" as a "matter of public concern" because they involved Dr. Elkins's alleged commission of numerous acts that could subject her to either criminal or civil liability, which are issues "in connection with" and "related to" community well-being and government. *See**id.* §§ 27.001(3), 27.001(7)(B), (C) ; *see also**Watson v. Hardman* , 497 S.W.3d 601, 607 (Tex. App.-Dallas 2016, no pet.) (recognizing that statements regarding misconduct or crime are statements relating to "community well-being"). Therefore, I believe James and Pyles successfully established the TCPA's applicability to Dr. Elkins's claims under the free-speech prong of the statute.6*See* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), 27.003(a).

Neither below nor in this court does Dr. Elkins respond to the arguments of James and Pyles with regard to the applicability of the TCPA as it relates to the exercise of the right to free speech, right to petition, and right to associate. Rather, as the majority asserts, Dr. Elkins argues her claims are specifically exempt from the statute under the TCPA's insurance exemption provision. *See id.* § 27.010(d). That section states the TCPA "does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract." *Id.* The burden is on Dr. Elkins to prove this statutory exemption. *See**Tervita, LLC* , 482 S.W.3d at 282.

Dr. Elkins argues the exemption is applicable because James and Pyles made statements to Travelers-the practice's insurance carrier-when the practice sought *621recovery under its policy for Dr. Elkins's alleged misappropriation of property. She also points out that she sued Travelers for violations of the Texas Insurance Code. Dr. Elkins therefore concludes her legal action was brought under the Insurance Code or arose out of an insurance contract, exempting her claims from the TCPA.

Contrary to the majority, I believe this issue was resolved by the Dallas Court of Appeals in *Tervita, LLC v. Sutterfield* . In that case, an injured employee filed a claim for worker's compensation benefits, but his claim was denied. *Id.* at 281-82. At a contested case hearing before the Texas Department of Insurance, a Tervita representative testified. *Id.* at 282. The Department ruled in Tervita's favor. *Id.* Thereafter, the employee sued Tervita for an alleged violation of the Texas Labor Code, negligent misrepresentation, and conspiracy. *Id.* Tervita filed a motion to dismiss pursuant to section 27.003(b) of the TCPA, but it was denied by the trial court. *Id.*

On appeal, the Dallas Court of Appeals held Tervita proved the employee's claims were based on Tervita's exercise of a protected right under the TCPA. *Id.* at 284-85. However, relying on section 27.010(d), the employee argued his claims against Tervita were exempt from the TCPA because the statute does not apply to claims under the Insurance Code or that arise out of an insurance contract. *Id.* According to the employee, he could not have filed suit under the Labor Code but for the fact that Tervita had elected to obtain worker's compensation insurance. *Id.* Therefore, according to the employee, his claims arose out of an insurance contract between his employer and the insurance carrier. *Id.* The appellate court rejected this argument. *Id.* at 285-86.

The Dallas Court of Appeals held the employee's suit was neither a legal action brought under the Insurance Code, nor did it arise out of an insurance contract. *Id.* After reviewing the employee's petition, the court held it showed claims against Tervita under the Labor Code, which prohibits the discharge or discrimination against a worker who files a worker's compensation claim or institutes a proceeding under the Texas Worker's Compensation Act, and under the common law for conspiracy. *Id.* at 286. The petition did not include a claim against Tervita under the Insurance Code, and the employee did not seek to recover damages from Tervita based on the contract between it and the carrier. *Id.* Accordingly, the employee's suit did not fall within the insurance exemption set out in section 27.010(d). *Id.* I find *Tervita* persuasive.

I believe Dr. Elkins's argument with regard to section 27.010(d) is essentially the same as that urged by the employee in *Tervita* , and rejected by the appellate court. I have reviewed Dr. Elkins's petition and she did not assert claims against James or Pyles *under* the Texas Insurance Code, nor does she seek recovery from them *based* on the insurance contract between the practice and Travelers. Rather, the only claims asserted against James or Pyles arise under common law-defamation, business disparagement, intentional infliction of emotional distress, and conspiracy. Thus, her claims against James and Pyles-the only movants under the TCPA-were not brought under the Insurance Code, nor do they arise out of an insurance contract. *See**id.* at 285-86. I would hold that just as the employee's claims in *Tervita* were not subject to the insurance exemption in section 27.010(d), neither are Dr. Elkins's claims. *See id.* ; *see also* TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(d).

In sum, I would hold that if the trial court denied the motions to dismiss because *622it determined Dr. Elkins's claims were not subject to the TCPA, such decision was erroneous. Because I believe James and Pyles established the applicability of the TCPA, the burden shifted to Dr. Elkins to establish "by clear and specific evidence a prima facie case" for the essential elements of the claims challenged in the motions to dismiss-defamation, business disparagement, IIED, and conspiracy. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ; *Lipsky* , 460 S.W.3d at 587 ; *Coleman* , 512 S.W.3d at 899. I do not believe she met her burden with regard to any of her claims.

*4. *Did Dr. Elkins Establish a Prima Facie Case?**

James and Pyles argue Dr. Elkins did not establish each element of her claims by clear and specific evidence. As discussed previously, establishing a prima facie case by clear and specific evidence requires more than mere notice pleading. *Lipsky* , 460 S.W.3d at 590-91. Direct evidence is not required; rather, circumstantial evidence and rational inferences may be sufficient to meet the plaintiff's burden. *Id.* at 589-90. However, conclusory statements are not probative, and "bare, baseless opinions" are not "a sufficient substitute for clear and specific evidence. *Id.* at 592 ; *Quintanilla v. West* , 534 S.W.3d 34, 47 (Tex. App.-San Antonio 2017, pet. filed) (quoting *E.I. DuPont* , 136 S.W.3d at 223-24 ).

a. *Defamation*

To establish a claim for defamation, a plaintiff must prove the defendant (1) published a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases. *Lipsky* , 460 S.W.3d at 593 (citing *WFAA-TV, Inc. v. McLemore* , 978 S.W.2d 568, 571 (Tex. 1998) ). The plaintiff's status determines the degree of fault the plaintiff must prove-a private person need only prove negligence, but a public figure or official must prove actual malice. *Id.* However, even a private person must prove actual malice when her claims raise a qualified privilege. *Espinosa v. Aaron's Rents, Inc.* , 484 S.W.3d 533, 543 (Tex. App.-Houston [1st Dist.] 2016, no pet.) ; *see**Shell Oil Co. v. Writt* , 464 S.W.3d 650, 655 (Tex. 2015) ; *Gonzales v. Levy Strauss & Co.* , 70 S.W.3d 278, 282 (Tex. App.-San Antonio 2002, no pet.). " 'Actual malice' " in this context means that the statement was made with knowledge of its falsity or with reckless disregard for its truth." *Id.* (citing *Huckabee v. Time Warner Entm't Co.* , 19 S.W.3d 413, 420 (Tex. 2000) ). It does not mean bad motive or ill will; rather, it simply means the defendant entertained serious doubts about the truth of the publication. *See**Greer v. Abraham* , 489 S.W.3d 440, 443 (Tex. 2016) ; *Hotzev. Miller* , 361 S.W.3d 707, 713 (Tex. App.-Tyler 2012, pet. denied).

James and Pyles argue they are entitled to a qualified privilege in this case, mandating that Dr. Elkins prove the allegedly defamatory statements were made with actual malice as opposed to negligence. They assert Dr. Elkins failed to meet her burden to produce clear and specific evidence with regard to this element. James and Pyles contend their internal communications, as well as those to SAPD and Travelers were subject to a qualified or conditional privilege because they were made in the course of an investigation following a report of wrongdoing by Dr. Elkins. *See**Randall's Food Mkts., Inc. v. Johnson* , 891 S.W.2d 640, 647 (Tex. 1995) ; *Espinosa* , 484 S.W.3d at 543 ; *Gonzales* , 70 S.W.3d at 282. Whether a qualified privilege exists is a question of law. *Burbage v. Burbage* , 447 S.W.3d 249 (Tex. 2014) ; *Yeske v. Piazza Del Arte, Inc.* , 513 S.W.3d 652, 664 (Tex. App.-Houston [14th Dist.] 2016, no pet.).

*623A qualified privilege attaches to statements made in the course of an investigation following a report of employee wrongdoing. *Randall's Food Mkts.* , 891 S.W.2d at 646 ; *Espinosa* , 484 S.W.3d at 543 ; *Gonzales* , 70 S.W.3d at 282. "The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate." *Randall's Food Mkts.* , 891 S.W.2d at 646. The privilege is defeated only by proof the statements at issue were motivated by actual malice that existed at the time the statements were made. *Id.*

Both James and Pyles pled the existence of a qualified privilege. Pursuant to the TCPA, the burden to establish a valid defense to a claim rests upon the movant. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). To the extent a qualified privilege is an affirmative defense under the TCPA, and assuming James and Pyles were required to prove their investigation privilege by a preponderance of the evidence before Dr. Elkins was required to prove actual malice, I believe James and Pyles met their burden. *See**id.* at §§ 27.005(c), (d) ; *see also**Burbage* , 447 S.W.3d at 254 (holding that qualified privilege operates as affirmative defense in nature of confession and avoidance, and defendant bears burden of proving privilege unless plaintiff's petition affirmatively demonstrates privilege; if proven or demonstrated, burden shifts to plaintiff to prove actual malice).

The undisputed evidence shows Jean and Pyles conducted an investigation into Dr. Elkins's conduct-financial and otherwise-at Dr. James's behest after Jean had reported her belief that Dr. Elkins had submitted improper payroll requests, i.e., payroll requests made based on gross as opposed to net production, and inaccurate write-offs. Dr. Elkins contended the investigation was, at best, a shoddy pretext, including only four years of her employment-2011 through 2014-and was merely a ruse to retaliate against her when she declined to purchase the practice. However, she does not dispute that an investigation was conducted. At the conclusion of the investigation, believing they had uncovered proof of financial malfeasance and other improprieties, reports and statements about the alleged malfeasance were submitted to SAPD and Travelers. It is these statements upon which Dr. Elkins bases her claims.

Dr. Elkins argues the privilege does not apply because by the time the statements were made to SAPD and Travelers, the investigation had been completed. Dr. Elkins fails to understand the scope of the privilege. The supreme court specifically held the investigation privilege remains intact as long as the statements that are alleged to be defamatory pass to those with a duty or interest in the matter to which the statements relate. *Randall's Food Mkts.* , 891 S.W.2d at 646. Here, the statements were passed to SAPD, which obviously had a duty to investigate claims of criminal conduct, and Travelers, which undoubtedly had an interest in the matter given that the practice sought to recover under its policy with Travelers based on Dr. Elkins's alleged misconduct. Because the statements upon which Dr. Elkins relied for her claims were passed only to those with a duty or interest in her alleged wrongdoing, the investigative privilege remained intact for purposes of the reports and statements to SAPD and Travelers. *See id.* This court has recognized that statements made to an interested or duty-bound entity following the conclusion of an investigation are still subject to the privilege. *See**Gonzales* , 70 S.W.3d at 282.

In *Gonzales* , the plaintiffs sued their employer for violations of the Texas Right to Work Act and defamation after the employer *624fired them for poor judgment and violation of company rules. *Id.* at 280-81. The plaintiffs alleged their employer defamed them in connection with their termination. *Id.* The employer claimed it was entitled to judgment on the defamation claim because any allegedly defamatory statements were privileged because they were made as part of an investigation into the employees' wrongdoing, and there was no evidence of actual malice. *Id.* at 281-82. The trial court granted summary judgment in favor of the employer, and the employees appealed. *Id.* at 281.

With regard to the defamation claim, we began our analysis in *Gonzales* by reciting the law regarding the qualified privilege relating to investigative statements as set forth in *Randall's Food Mkts.**Id.* at 282. Therein, we noted the statements relied upon by the employees for the defamation claim were made to a company supervisor, human resources director, regional director, *as well as the Texas Workforce Commission and the Frick Company, which handled the unemployment claim on the company's behalf.**Id.* (emphasis added). We held that because the allegedly defamatory statements "were made only to those involved in the process of investigating the incident and [the] unemployment claims," the statements were qualifiedly privileged. *Id.* And because the employees failed to raise a fact issue on actual malice, summary judgment in favor of the employer was proper. *Id.* at 283.

*Gonzales* demonstrates allegedly defamatory statements are qualifiedly privileged to all of those involved in investigating the incident based either on a duty-the Texas Workforce Commission-or common interest-the company handling the unemployment claims for the employer. *See**id.* at 281-83. The privilege is not limited to statements made during an employer's actual investigation, but extends to the reporting of the investigative results to those who have a duty or interest therein. *See id.* Thus, I would hold the statements made by James and Pyles to SAPD and Travelers were subject to a qualified privilege as both had an interest or duty in Dr. Elkins's alleged misconduct. *See id.* Because I believe James and Pyles proved their defense of qualified privilege by a preponderance of the evidence, Dr. Elkins had to establish a prima face case by clear and specific evidence with regard to the element of actual malice. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c), (d).

In support of actual malice, Dr. Elkins asserted in her pleadings and affidavit that the investigation conducted by Jean and Pyles was shoddy and incomplete. She claimed that if they had reviewed the financial documents applicable to her entire tenure with the practice-or asked her, they would have discovered she frequently submitted paperwork for payment based on gross as opposed to net production. In support, she provided documents establishing she submitted paperwork seeking payment based on gross production throughout her tenure with the practice, and that she was paid based on those submissions. Thus, according to Dr. Elkins, if Jean and Pyles had reviewed more than three years of documents, they would have discovered she had always been paid based on gross production, and because they did not, their statements were made with reckless disregard for the truth, i.e., actual malice. She also points out they had a motive to conduct a negligent investigation-retaliation for her refusal to purchase the practice at the price desired by Dr. James.

However, actual malice does not focus on what the defendant should have done or failed to do. *Tex. Campaign for the Env't v. Partners Dewatering Int'l, LLC* , 485 S.W.3d 184, 201 (Tex. App.-Corpus Christi 2016, no pet.). Neither is the focus *625on what a defendant would have known or discovered if he had researched the matter. *Id.* Rather, the focus is on whether the defendant subjectively entertained significant doubt about the truth of his statements when they were made. *Bentley v. Bunton* , 94 S.W.3d 561, 596 (Tex. 2002). Neither an error in judgment nor negligence is insufficient to establish reckless disregard. *Forbes Inc. v. Granada Biosciences, Inc.* , 124 S.W.3d 167, 171 (Tex. 2003) ; *Casso v. Brand* , 776 S.W.2d 551, 563 (Tex. 1989).

Moreover, Texas courts have recognized that "a failure to fully investigate is not evidence of actual malice." *E.g.* , *Hearst Corp. v. Skeen* , 159 S.W.3d 633 (Tex. 2005) (quoting *Bentley* , 94 S.W.3d at 596 ). Lack of care or injurious motive alone are not proof of actual malice. *Bentley* , 94 S.W.3d at 596. Moreover, misunderstanding ambiguous facts is not actual malice, although improbable statements made on obviously dubious information may be. *Id.*

In this case, for proof of malice, Dr. Elkins relies on the allegedly incomplete investigation and the alleged motive of retaliation. This is insufficient to establish actual malice. The financial records for 2011-2014-the records relied on by James and Pyles-showed payments to Dr. Elkins based on gross production. The Contract defined "production" as the fee charged for the service by the practice. Per the terms of the Ccontract, Dr. Elkins was to be paid "production at a reduced rate" for any procedures she did that were subject to a "reduced rate for whatever reason." James and Pyles certainly could have interpreted this to mean net production. Dr. Elkins claimed her signature on the Contract produced by James and Pyles was a forgery, but she did not produce any evidence James and Pyles knew or should have known it was a forgery. Thus, the information relied on by James and Pyles was not "obviously dubious." *See**Bentley* , 94 S.W.3d at 596.

Dr. Elkins's claim of an inadequate investigation is no evidence of malice. Dr. Elkins provided no evidence that James or Pyles purposefully avoided the truth during the investigation. It is undisputed they reviewed four years of financial documents and interviewed numerous witnesses inside and outside the practice. Dr. James advised both Jean and Pyles when they came to him that Dr. Elkins was to be paid based on net production, and Jean and Pyles relied on that statement. Even if Dr. James's statement was false, there is no evidence the aged dentist knew it was false-and the Contract belies this, and there was no reason for Jean and Pyles not to rely on his statement. *See**DR Partners v. Floyd* , 228 S.W.3d 493, 498 (Tex. App.-Texarkana 2007, pet. denied) (holding actual malice cannot be inferred from falsity of statement alone).

The numerous documents Dr. Elkins relies on show she was paid for certain periods based on gross as opposed to net production (she did not include documents for every pay period during her tenure), but this does not constitute evidence of purposeful avoidance. Rather, the documentation merely establishes that for many pay periods Dr. Elkins was paid based on gross production, not that she was *entitled* to payment on that basis. The other evidence she relies on are her conclusory statements that she had been paid based on gross production, but conclusory statements are not probative, and "bare, baseless opinions" are not "a sufficient substitute for clear and specific evidence." *Lipsky* , 460 S.W.3d at 592 ; *Quintanilla* , 534 S.W.3d at 47. In sum, Dr. Elkins failed to establish "by clear and specific evidence a prima facie case for [the] essential element of" actual malice. *See**id.* at § 27.005(c); *Lipsky* , 460 S.W.3d at 587 ;

*626*Coleman* , 512 S.W.3d at 899. Accordingly, I believe the trial court erred in refusing to dismiss Dr. Elkins's defamation claims against James and Pyles.

b. **Business Disparagement**

James and Pyles next contend Dr. Elkin's failed to produce clear and specific evidence on certain elements of Dr. Elkins's business disparagement claim. To prevail on a business disparagement claim, a plaintiff must establish (1) the defendant published false and disparaging information about the business (2) with actual malice, (3) without privilege, (4) that resulted in special damages. *Lipsky* , 460 S.W.3d at 592. James and Pyles argue Dr. Elkin's failed to meet her burden with regard to the elements of actual malice and privilege.7

As noted above, I believe Dr. Elkins failed to establish by clear and specific evidence a prima facie case on the element of actual malice with regard to her defamation claim. It naturally follows that her proof is likewise deficient with regard to the business disparagement claim. *See**Forbes Inc.* , 124 S.W.3d at 171.

Moreover, contrary to the burden in her defamation claim, it was Dr. Elkins's burden to establish an absence of privilege to avoid dismissal of her business disparagement claim. *See**Lipsky* , 460 S.W.3d at 592. James and Pyles proved their investigative privilege by a preponderance of the evidence. Dr. Elkins has not established the absence of the privilege given her only argument was that at the time the statements were made, the investigation had concluded. *See**Gonzales* , 70 S.W.3d at 281-83.

In my opinion, Dr. Elkins failed to establish by clear and specific evidence a prima facie case on the elements of actual malice and absence of privilege with regard to her claim for business disparagement. I would therefore hold the trial court erred in denying the motions to dismiss Dr. Elkins's claims for business disparagement as to James and Pyles.

c. *Intentional Infliction of Emotional Distress*

James and Pyles first argue the trial court erred in refusing to dismiss Dr. Elkins's claim for IIED because IIED is a "gap-filler" cause of action that is unavailable because the gravamen of Dr. Elkins's complaint in this case sounds in defamation. In other words, they argue that because her IIED claim is based on the same conduct as her defamation claim-and it undeniably is-her IIED claim fails as a matter of law. I disagree.

This court addressed this same argument in *Spencer v. Overpeck* , No. 04-16-00565-CV, 2017 WL 993093, at *4-*5 (Tex. App.-San Antonio Mar. 15, 2017, pet. denied) (mem. op.). In *Spencer* , we held the "gap-filler" argument was premature in the context of an appeal from the denial of a motion to dismiss under the TCPA. *Id.* at *4 ; *but see**Bilbrey v. Williams* , No. 02-13-00332-CV, 2015 WL 1120921, at *13-*14 (Tex. App.-Fort Worth, Mar. 12, 2015, no pet.) (mem. op.) (holding that because IIED is "gap-filler" claim and factual basis for plaintiff's IIED was same as factual basis for defamation claim, plaintiff had not provided "minimum quantum of evidence necessary to support" IIED claim).

*627In reaching this holding, we relied on the supreme court's opinion in *Hoffmann-La Roche Inc. v. Zeltwanger* , 144 S.W.3d 438 (Tex. 2004). In that case, the supreme court recognized the "gap-filler" argument does not mean a plaintiff could not establish a prima facie case; only that the claim would be otherwise precluded in light of duplicate remedies available in other claims. *Id.* at 447-48. Thus, because a plaintiff's burden under section 27.005(c) is merely to establish a prima facie case for each element of her claims, any suggestion that a plaintiff's claim fails because it is merely a "gap-filler" is premature. *Spencer* , 2017 WL 993093, at *4-*5 ; *but see**Bilbrey* , 2015 WL 1120921, at *13-*14. Accordingly, the "gap-filler" argument does not require that this court reverse the trial court's denial of the motions to dismiss with regard to Dr. Elkins's claim for IIED.

The "gap-filler" argument is not the only argument presented by James and Pyles with regard to the IIED claim. They also contend, among other things, that Dr. Elkins failed to establish "by clear and specific evidence a prima facie case for each essential element of" her IIED claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ; *see**Lipsky* , 460 S.W.3d at 587 ; *Coleman* , 512 S.W.3d at 899. Specifically, they argue she failed to produce clear and specific evidence of extreme and outrageous conduct. On this record, I agree.

"To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. *Hoffmann-LaRoche Inc.* , 144 S.W.3d at 445 (citing *Standard Fruit & Vegetable Co. v. Johnson* , 985 S.W.2d 62, 65 (Tex. 1998) ); *see**Pleasant Glade Assembly of God v. Schubert* , 264 S.W.3d 1, 17 n.3 (Tex. 2008). The supreme court has defined extreme and outrageous conduct as conduct that is " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' " *Hoffmann-LaRoche Inc.* , 144 S.W.3d at 445 (quoting *Twyman v. Twyman* , 855 S.W.2d 619, 621 (Tex. 1993) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. (1965) ). Liability for the tort of IIED does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. *Id.* (citing *GTE Southwest, Inc. v. Bruce* , 998 S.W.2d 605, 612 (Tex. 1999) ); RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.).

In Dr. Elkins's petition, as well as her response to the motions to dismiss, she relied on the allegedly false statements made by James and Pyles as evidence of extreme and outrageous conduct. In her petition she specifically stated that "by making the false statements [described in the petition][James and Pyles] caused her emotional distress." She further stated the making of "blatantly false and self-serving statements" was extreme and outrageous. Similarly, in her response, she claimed that by accusing her of theft and embezzlement-based on the known falsity of such statements-the defendants' conduct fell within the category of outrageous and extreme. Thus, as evidence of extreme and outrageous conduct, Dr. Elkins relied solely on the allegedly false statements made by James and Pyles to SAPD and Travelers.

The statements attributed to James and Pyles about Dr. Elkins, as stated in Dr. Elkin's petition, can be summarized as follows:

> • Dr. Elkins committed possible theft;

> *628• Dr. Elkins used the practice's petty cash for personal use;

> • Dr. Elkins used practice money to pay for family vacations;

> • Dr. Elkins committed payroll fraud for a minimum of three years;

> • Dr. Elkins breached her confidentiality agreement by making unauthorized copies of documents, stealing financial information, and discussing the practice with outsiders;

> • Dr. Elkins attempted to lure other employees away from the practice;

> • Dr. Elkins removed practice documents from the office and lied about it;

> • Dr. Elkins tampered with and changed the password to a video camera belonging to the practice; and

> • Dr. Elkins added her name to Dr. James's personal credit card without permission.

Texas courts have often held that as a matter of law, the making of defamatory statements-even if false-is not the type of conduct that can be considered extreme and outrageous for purposes of an IIED claim. An example that bears a similarity to this case is found in *Diamond Shamrock Ref. & Mkting. Co. v. Mendez* , 844 S.W.2d 198, 202 (Tex. 1992). In *Mendez* , an employee sued his employer for, among other things, IIED after he was terminated. 844 S.W.2d at 198. According to the employee, his supervisor ordered him to clean up debris in his work area; the debris included loose nails discarded by carpenters. *Id.* at 199. The employee was angered by the assignment, considering it outside the scope of his duties. *Id.* at 198-99. While cleaning up, the employee threw some of the nails-the value of which was less than five dollars-into a box and placed the box into his lunch bag. *Id.* at 199. When he left for the day, Mendez left the lunch bag, which contained the nails, near the time clock. *Id.* A security officer found the bag and the nails and reported it to management. *Id.* When confronted by a manager, the employee described what happened. *Id.* A manager asserted it appeared as if the employee was stealing, and the employee was fired. *Id.* Word of the termination quickly spread, and numerous people-including potential employers-knew the employee had been terminated for theft. *Id.* The employee filed suit alleging numerous causes of action, including IIED. *Id.* The employee based his IIED claim not on his termination, but on statements falsely depicting him in the community as a thief. *Id.* at 202.

A jury found in favor of the employee on his IIED claim, but the appellate court found no evidence to support it. *Id.* at 199-200. Upon review by the supreme court, that court agreed, holding that even if the employee's allegation was true-that his employers made statements to fellow employees and the community at large that depicted him as a thief, such conduct was not sufficiently outrageous to raise a fact issue on the element of extreme and outrageous conduct. *Id.* The supreme court held making false allegations of theft fell short of being "beyond all possible bounds of decency," "atrocious," and "utterly intolerable in a civilized community." *Id.* (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.).

Similarly, in *Tex. Farm Bureau Mut. Ins. Cos. v. Sears* , the supreme court held the conduct of an insurance company was not extreme and outrageous when it reported to authorities that one of its agents was involved in misconduct. 84 S.W.3d 604, 611 (Tex. 2002). In *Sears* , an insurance company hired an investigator to look into allegation of an alleged kickback scheme involving one of its agents, Sears. *Id.* at 606. Although the investigation produced *629no direct evidence that Sears was involved in a kickback scheme, the investigator informed the insurance company that Sears was involved in other suspicious dealings on two particular claims. *Id.* The insurance company terminated Sears and turned the results of the investigation over to the Texas Board of Insurance, the United States Postal Service, the United States Attorney's Office, the Internal Revenue Service, and various other federal agencies. *Id.* In addition, the insurance company attempted to persuade the insurance board to revoke Sears's license and to have the IRS investigate him for tax evasion. *Id.* at 606-07. Thereafter, Sears sued the insurance company and others, alleging numerous causes of action, including IIED. *Id.* at 607. In support of his claim for IIED, Sears relied upon actions the insurance company took after his termination-reporting the results of its investigation to federal and state agencies and attempting to have his insurance license revoked. *Id.* at 612. Sears claimed the investigation was shoddy and the insurance company reported his conduct and sought suspension of his license based on "a personal vendetta designed to punish Sears for making earlier reports of an alleged kickback scheme." *Id.*

The jury found in favor of Sears on his IIED claim, and the court of appeals affirmed this finding, relying on the insurance company's post-termination conduct. *Id.* However, the supreme court held that although motive or intent is relevant to an IIED claim, it is insufficient to support liability. *Id.* Rather, the conduct itself must be extreme and outrageous. *Id.* The supreme court held the insurance company's behavior did not rise to this level, reversing the court of appeals' judgment and rendering judgment that Sears take nothing. *Id.*

Both *Mendez* and *Sears* are instructive. Much like the plaintiffs in those cases, Dr. Elkins relies on statements made by James and Pyles alleging civil and criminal misconduct following an allegedly deficient investigation. Even considering the statements in the light most favorable to Dr. Elkins-that the statements are false, were made with knowledge of their falsity, and based on a faulty investigation, I do not believe they constitute clear and specific evidence of extreme and outrageous conduct for purposes of her IIED claim. *See**Spencer* , 2017 WL 993093, at *4 (holding trial court and appellate court are required to consider pleadings and evidence in light most favorable to plaintiff). The statements Dr. Elkins relies on assert theft and other acts of malfeasance with regard to her employment with the practice. These types of statements-as can be seen from *Mendez* and *Sears* -are not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." *Hoffmann-LaRoche Inc.* , 144 S.W.3d at 445. I would therefore conclude the evidence relied upon by Dr. Elkins does not constitute clear and specific evidence of extreme and outrageous conduct. Accordingly, I would hold the trial court erred in denying the motions to dismiss Dr. Elkins's claim for IIED as to both James and Pyles.

d. *Conspiracy*

In her petition, Dr. Elkins alleged James and Pyles intentionally, "in combination with each other, agreed to make false statements to Travelers and to SAPD ... by unlawful means ... to defraud Travelers, and to cause [her] intentional harm[.]" Pyles contends the trial court erred in granting her motion to dismiss with regard to the conspiracy allegation because: (1) conspiracy is a derivative *630claim and because Dr. Elkins failed to prove a prima facie case with regard to any of her underlying tort claims-defamation, business disparagement, and IIED-she likewise failed to establish a prima facie case for her conspiracy claim; (2) Dr. Elkins waived her conspiracy claim by failing to address it in her response to the motions to dismiss; and (3) Dr. Elkins did not establish a prima facie case by clear and specific evidence that James and Pyles had a meeting of the minds to make false statements.8

"An action for civil conspiracy has five elements: (1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result." *First United Pentecostal Church of Beaumont v. Parker* , 514 S.W.3d 214, 222 (Tex. 2017). To recover for civil conspiracy, a plaintiff must prove "specific intent to agree to accomplish something unlawful or to accomplish something lawful by unlawful means." *Id.*

This court has recognized, that a defendant's liability for civil conspiracy is dependent on his participation in some underlying tort for which a plaintiff seeks to hold at least one of several defendants liable. *Mission Wrecker Serv., S.A., Inc. v. Assured Towing, Inc.* , No. 04-17-00006-CV, 2017 WL 3270358, at *6 (Tex. App.-San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (citing *Tilton v. Marshall* , 925 S.W.2d 672, 681 (Tex. 1996) ). Accordingly, we held that under the TCPA, if the plaintiff fails to establish a prima facie case on at least one of the alleged underlying torts for which she sought to hold the defendants liable, she has similarly failed to establish a prima facie case on her civil conspiracy claim. *Id.* Because I believe Dr. Elkins failed to establish a prima facie case for any of the underlying torts asserted against James and Pyles, I would hold she has also failed to establish a prima facie case on her conspiracy claim. *See id.*

With regard to the contention that Dr. Elkins waived her civil conspiracy claim by failing to discuss its elements-or even mention it-in her response to the motions to dismiss, I disagree. In support of this contention, James and Pyles rely on *Bilbrey* . In that case, the court noted that the plaintiff "did not specifically discuss the elements of conspiracy or what evidence supported his conspiracy claim" in his response to the defendant's motion to dismiss. *Bilbrey* , 2015 WL 1120921, at *14. However, the court did not hold the plaintiff had waived his conspiracy claim. *Id.* Rather, the court held that because the plaintiff had failed to make a prima facie case for defamation-the underlying tort relied on for his conspiracy claim-he had likewise failed to make a prima facie case for his conspiracy claim. *Id.* I have found no authority, nor have James or Pyles cited to any authority for the proposition that a plaintiff's failure to address a claim in the response to a motion to dismiss waives that claim. Moreover, such a holding would be contrary to the TCPA. The issue is whether the plaintiff established a prima facie case by clear and specific evidence with regard to each element of her claims. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ; *Lipsky* , 460 S.W.3d at 587 ; *Coleman* , 512 S.W.3d at 899. A plaintiff could possibly meet her burden based on her petition and any evidence attached *631thereto. Thus, I would decline to hold that failing to address a claim in a response to a motion to dismiss under the TCPA automatically results in waiver of that claim.

Pyles also contends Dr. Elkins's conspiracy claim was subject to dismissal because she failed to provide clear and specific evidence there was a meeting of the minds between James and Pyles to make false statements about Dr. Elkins. As set out above, a conspiracy requires a specific intent to agree to do something unlawful or to do something lawful in an unlawful way. *Parker* , 514 S.W.3d at 222. This requires a meeting of the minds on a course of action. *Id.* Thus, here, Dr. Elkins had to provide clear and specific evidence that Dr. James, Jean, Pyles, or some combination of the three, had agreed to make false statements about Dr. Elkins and report them to SAPD and Travelers.

Viewing Dr. Elkins's contentions in the most favorable light, there is no evidence of an agreement by Dr. James, Jean, Pyles, or any combination thereof, to make false statements about Dr. Elkins. Assuming all of the statements made by James and Pyles about Dr. Elkins were false, there is no evidence of any specific intent to agree to make or report those false statements in an effort to injure Dr. Elkins. In her brief, Dr. Elkins relies on the lack of a complete investigation-failure to review of all the payroll records from 1991 through 2014-to establish an agreement to assert false statements. At best this evidence shows an agreement to conduct a limited investigation. A limited or deficient investigation is not clear and specific evidence-direct or circumstantial-of an agreement to make and publish false statements. Accordingly, I believe Dr. Elkins failed to provide clear and specific evidence sufficient to establish a prima facie case that there was a meeting of the minds by Dr. James, Jean, Pyles, or any combination of the three, to make and report false statements about her. Thus, for this additional reason, the trial court erred in denying the Pyles's motion to dismiss with regard to the conspiracy claim.

***Motion for Discovery and Motion for Continuance***

As to Dr. Elkins's contention that the trial court erred in denying her motion for discovery and motion for continuance, she argues that if for any reason this court holds the trial court erred in denying the motions to dismiss, we should further hold the trial court erred in denying her motions for discovery and continuance. She contends the denial of these motions deprived her of access to evidence in possession of James, Pyles, and Travelers that was relevant to the motions to dismiss. *See id.* § 27.006(b) (stating that on motion by party or on court's own motion and on showing of good cause, court may allow specified and limited discovery relevant to motion to dismiss). Because I believe the trial court erred in refusing to grant the motions to dismiss in their entirety, I address Dr. Elkins's contentions with regard to her motions for discovery and for continuance. I would hold Dr. Elkins's complaints regarding the denial of these motions cannot form the basis of an interlocutory appeal.9

*632"A party may not appeal an interlocutory order unless authorized by statute." *Bally Total Fitness Corp. v. Jackson* , 53 S.W.3d 352, 352 (Tex. 2001). In other words, if there is no statute authorizing an appeal of an interlocutory order, "[a]n appellate court lacks jurisdiction to review" the interlocutory order. *Helix Energy Sols. Group, Inc. v. Howard* , 452 S.W.3d 40, 42 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing *Qwest Commc'ns Corp. v. AT & T Corp.* , 24 S.W.3d 334, 336 (Tex. 2000) ). An interlocutory appeal of a trial court's denial of a motion to dismiss filed under the TCPA is statutorily authorized. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(12) ; *see also id.* § 27.008. An appellate court's jurisdiction over an interlocutory appeal is limited to the scope permitted in the statute. *Astoria Indus., of Iowa, Inc. v. SNF, Inc.* , 223 S.W.3d 616, 626 (Tex. App.-Fort Worth 2007, pet. denied) ; *see also**CMH Homes v. Perez* , 340 S.W.3d 444, 447 (Tex. 2011) (holding appellate courts strictly apply statutes granting interlocutory appeals because they are narrow exceptions to general rule against appeals from interlocutory orders). Issues outside that scope cannot be considered in the interlocutory appeal, even if presented in the same motion or other relief is granted in the same order. *See**Astoria Indus.* , 223 S.W.3d at 626.

The authority to seek an interlocutory appeal under the TCPA is limited to appeals from an order *denying a motion to dismiss.* TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (emphasis added). Neither section 51.014 of the Civil Practice & Remedies Code nor any other statute permits interlocutory appeals from an order denying discovery under section 27.006(b) of the TCPA or an associated motion for continuance. Accordingly, I conclude this court lacks jurisdiction over Dr. Elkins's issues regarding the trial court's rulings on her motions for discovery and continuance. *See**Howard* , 452 S.W.3d 40, 42 ; *Astoria Indus.* , 223 S.W.3d at 626. When an appeal is from two interlocutory rulings, only one of which is made appealable by statute, the proper course of action is to dismiss the unappealable portion and rule on the portion that is subject to appeal. *Sanders v. City of Grapevine* , 218 S.W.3d 772, 776-77 (Tex. App.-Fort Worth 2007, pet. denied) ; *Elm Creek Villas Homeowner Ass'n v. Beldon Roofing & Remodeling Co.* , 940 S.W.2d 150, 154 (Tex. App.-San Antonio 1996, no writ). I would dismiss for want of jurisdiction Dr. Elkins's issues relating to the trial court's denial of her motions for discovery and continuance.

**CONCLUSION**

Based on my preceding analysis, I would hold: (1) the claims challenged by James and Pyles fall within the TCPA, *see* TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), 27.001(7)(B), (C) ; *see also**Watson v. Hardman* , 497 S.W.3d 601, 607 ; (2) Dr. Elkins failed to establish by clear and specific evidence a prima facie case for all of the essential element of her claims, *see* TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ; *Lipsky* , 460 S.W.3d at 587 ; *Coleman* , 512 S.W.3d at 899 ; and (3) Dr. Elkins's issues relating to the trial court's rulings on her motions for discovery and continuance must be dismissed for want of jurisdiction. I would reverse the trial court's order denying the motions to dismiss filed by James and Pyles in its entirety, render judgment dismissing Dr. Elkin's claims for defamation, business disparagement, IIED, and conspiracy against James and Pyles, and remand this cause to the trial court for a determination of attorneys' fees and costs. *See**633TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (stating that award of attorney's fees and costs is mandatory when action is dismissed under TCPA). Therefore, I respectfully concur in the portions of the majority opinion and judgment reversing the trial court's order and rendering judgment in favor of James and Pyles, but dissent to the portions of the majority opinion and judgment affirming the trial court's order.

1

*See also**Backes v. Misko* , 486 S.W.3d 7, 21 (Tex. App.-Dallas 2015, pet. denied) (adopting *Newspaper Holdings* ); *Hicks v. Group & Pension Adm'rs, Inc.* , 473 S.W.3d 518, 531 (Tex. App.-Corpus Christi 2015, no pet.) (same); *Kinney v. BCG Attorney Search, Inc.* , No. 03-12-00579-CV, 2014 WL 1432012, at *6 (Tex. App.-Austin Apr. 11, 2014, pet. denied) (mem. op.) (same).

2

*See**Lancer Ins. Co. v. Garcia Holiday Tours* , 345 S.W.3d 50, 54 (Tex. 2011) ("The phrase 'arising out of' means 'originating from, having its origin in, growing out of or flowing from."); *see also**Red Ball Motor Freight, Inc. v. Employers Mut. Liab. Ins. Co. of Wis.* , 189 F.2d 374, 378 (5th Cir. 1951) (stating "arising out of" is broader than other qualifying phrases like "due to").

3

We have found no other legislative materials that provide further context to our construction. Despite the absence of such legislative materials, the intent of the insurance contract exemption is made obvious by the plain meaning of the TCPA's text. Furthermore, after Texas added the insurance contract exemption, Kansas and Oklahoma added identical exemptions to their analogous laws. *See*Kan. Stat. Ann. § 60-5320(h)(3) (2016); Okla. Stat. tit. 12, § 1439(4) (2014). We have found no Kansas or Oklahoma case construing the phrase "arising out of an insurance contract."

4

*See, e.g.* , *Akin v. Santa Clara Land Co.* , 34 S.W.3d 334, 340 (Tex. App.-San Antonio 2000, pet. denied) ("Each distinct publication of a defamatory statement inflicts an independent injury from which a defamation cause of action may arise.").

5

We are also unpersuaded by Pyles's contention that because the supreme court "denied" the petition for review in *Tervita* , that the supreme court must have agreed with the court of appeals' analysis. *See* Tex. R. App. P . 56.1(b)(1), (c) (explaining the difference between "petition denied"-for lack of satisfaction with the court of appeals' opinion, but when error does not require correction or error correction is not important to the state's jurisprudence-and "petition refused"-for expressing that the principles in the court of appeals' opinion are correct and have the precedential value of a supreme court opinion).

6

This case is distinguishable from *Spencer v. Overpeck* , in which this court held the challenge to the intentional infliction of emotional distress claim was premature. 2017 WL 993093, at *4. Here, appellants have challenged the intentional infliction of emotional distress elements in light of the "gap filler" principle; whereas in *Spencer* , the "only argument with regard to [the] intentional infliction of emotional distress claim is that the claim is a 'gap-filler' claim" that limits the **remedy** available. *See id.*

7

*See also**Verizon Corp. Servs. Corp. v. Kan-Pak Sys., Inc.* , 290 S.W.3d 899, 906 n.3 (Tex. App.-Amarillo 2009, no pet.) (holding jury could reasonably infer party to contract has actual knowledge of the terms, but merely being a party to contract does not conclusively establish actual knowledge); *Armendariz v. Mora* , 553 S.W.2d 400, 405 (Tex. Civ. App.-El Paso 1977, writ ref'd n.r.e.) (holding there was evidence that party who executed a contract knew of contract's terms in tortious interference case); *Nortex Drug Distrib., Inc. v. Sunset Trails, Inc.* , No. 05-98-00676-CV, 2000 WL 1230766, at *5 (Tex. App.-Dallas Aug. 31, 2000, no pet.) (mem. op., not designated for publication) (holding president of company assumed to have personal knowledge of high-level contract negotiations because of his position with company).

8

*Cf. also**PNP Petroleum I, LP v. Taylor* , 438 S.W.3d 723, 730 (Tex. App.-San Antonio 2014, pet. denied) (citing Timothy Patton , Summary Judgments in Texas § 7.06[1] (3d ed. 2013) ) (applying this rule in the summary judgment context).

9

In a cross-point, Dr. Elkins argues that, if we conclude she failed to satisfy her burden as to any elements of claims, we should remand for the trial court to reconsider her motion for continuance and discovery. We hold Dr. Elkins waived this issue by citing no authority and failing to explain how a continuance and further discovery might allow her to overcome Pyles's or the James Appellants' challenges under the TCPA. *See Grace Creek Dev., LP v. REM-K Builders, Ltd.* , No. 12-16-00184-CV, 2017 WL 2351523, at *11 (Tex. App.-Tyler May 31, 2017, pet. denied) (mem. op.); *Harris v. Archer* , 134 S.W.3d 411, 447 (Tex. App.-Amarillo 2004, no pet.).

1

For the remainder of the opinion, any reference to "James" refers collectively to appellants Robert B. James, DDS, Inc., A Texas Corporation, Robert B. James, DDS, Individually, Jean James, Individually. When these appellants are referenced individually, I refer to them as "the practice," "Dr. James," and "Jean."

2

In the report, Pyles stated that not only had Dr. Elkins committed payroll fraud for a minimum of three years in the sum of more than $300,000.00, she had also: (1) breached her confidentiality agreement with the practice by making unauthorized copies of documents, removing financial information, and discussing practice information with individuals outside of the practice; (2) attempted to lure a practice dentist and other practice employees away from the practice; (3) committed theft of petty cash of at least $18,000.00; (4) removed practice documents from the building: (5) tampered with and changed a password to a practice video camera; and (6) added her name to Dr. James's personal credit card without his permission and purchased items with the card that were not for the practice.

3

Dr. Elkins also asserted claims for breach of contract against the practice, and negligent misrepresentation against the practice and Dr. James. She also brought suit against Travelers and the investigative firm it hired to investigate the claim, alleging negligence, negligent misrepresentation, breach of contract, and violations of the Texas Deceptive Trade Practices Act and the Texas Insurance Code.

4

A "communication" is defined as the making or submitting of a statement or document in any form-oral, visual, written, audiovisual, or electronic. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1).

5

The majority contends James only sought dismissal of Elkins's claims as they related to the statements to SAPD. I believe the motion includes Elkins's claims based on the report to Travelers. For example, in the motion, James states the "investigative findings" were relayed not only to law enforcement authorities, but to Travelers. The motion references the insurance claim submitted to Travelers and its conclusion that a covered loss had occurred. In addition, the motion states the conduct complained of by Elkins "is the report to SAPD, discussions with state prosecutors, *and the filing of an insurance claim.* " Thus, James recognized Elkins's claims were based on both the report to SAPD and the FRE and sought relief under the TCPA based on both.

6

James and Pyles alternatively argue the statements relied upon by Dr. Elkins in support of her claims are likewise subject to the TCPA based on the exercise of the right to petition and right to association. *See*Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2), (4). Because I believe the communications were made in the exercise of the right of free speech, these contentions need not be addressed. *See**Coleman* , 512 S.W.3d at 901-02 ; *but see**Ford v. Bland* , No. 14-15-00828-CV, 2016 WL 7323309, at *1 (Tex. App.-Houston [14th Dist.] Dec. 15, 2016, no pet.) (holding statements to police regarding incidences of perceived wrongdoing are exercise of right to petition under TCPA); *Tervita, LLC* , 482 S.W.3d at 287 (suggesting claims based on communications between insured and insurer regarding claim would fall within TCPA right to associate).

7

A business disparagement claim is similar to a defamation claim. *Forbes Inc.* , 124 S.W.3d at 170. They differ in that defamation protects the personal reputation of a person, whereas business disparagement protects economic interest. *Id.* The actual malice standard for both torts is that same, i.e., the plaintiff must establish the defendant made the statement or statements at issue "with knowledge that it was false or with reckless disregard of whether it was true or not."*Id.* at 171.

8

Given that Dr. Elkins failed to establish a prima facie case for any of the underlying torts asserted against James and Pyles, it is irrelevant that James failed to specifically challenge the civil conspiracy allegation in his motion to dismiss.

9

In my analysis, I assume without deciding that Dr. Elkins was not required to file a separate notice of appeal. *See* Tex. R. App. P. 25.1(c) (stating that party who seeks to alter trial court's judgment or other appealable order must file notice of appeal); *see also**Bell Cnty. v. Kozeny* , No. 10-14-00021-CV, 2014 WL 4792656, at *3 n.3 (Tex. App.-Waco Sept. 24, 2014, no pet.) (mem. op.) (holding that under rule 25.1(c)"and longstanding case law," appellee need not file notice of appeal to assert cross-point to request relief in event of reversal).