REVERSE; RENDER and REMAND and Opinion Filed November 29, 2023 

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### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00589-CV NATHAN LONG, Appellant V. DR. KRISTI LARSON LONG, Appellee On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-21-03491-E OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein Nathan Long appeals the trial court’s order awarding Dr. Kristi Larson Long attorney’s fees in connection with her motion to dismiss under the Texas Citizens Participation Act (TCPA). 1 In five issues, Nathan argue s the trial court erred in (1) dismissing his claims under the TCPA; (2) ac ting untimely in attempting to vacate a December 15, 2021 order; (3) dismissing his claims because Kristi failed to meet her burden under the TCPA; (4) dismissing his cl aims because he satisfied the minimal

1 The Notice of Appeal advises of the desire to appe al from the final order, which is an “amalgam of several orders” including the last order issued on May 23, 2022, relative to attorneys’ fees. Those orders are identified and addressed below.–2– pleading obligations under Rule 91a; and (5 ) awarding attorney’s fees to Kristi pursuant to the TCPA. We reverse and re nder in part and re verse and remand for further proceedings.
FACTUAL BACKGROUND In August 2021, Nathan filed his original petition against Kristi in which he alleged the following facts. He and Kris ti were married for ei ghteen years and had seven children. They divorced in Apr il 2021, “after many months of acrimonious litigation,” Nathan and Kristi divorced. Am ong other things, the final divorce decree awarded Kristi a $3,000,000 promissory note to compensate her in the division of the parties’ estate. The note had a term of eight years and called for an initial payment of $500,000, whic h Nathan prepaid, and eight subsequent annual installments of $312,500 payable commenci ng on January 1, 2022, and thereafter on January 1 each year until January 1, 2029. The petition alleged that, in the early mo rning hours of July 5, 2021, Nathan and a date were arrested af ter falling asleep in his SUV where they had been parked at the top of a tower garage watching Fourth of July fireworks. The two were arrested for misdemeanor public intoxicati on although neither Nathan nor his date had been driving an automobile or walk ing around in public, and neither one was intoxicated. Further, no breathalyzer test was performed on either Nathan or his date.–3– The next day, Nathan be gan receiving “oblique bu t threatening” texts from Kristi. The first text stated, “Wait until you see what’s coming for you! I always suspected but I finally have proof. [Eldes t child] will run scared from you.” On or about July 20, 2021, Kristi texted Nathan sc reen shots of partially unclothed male dancers from advertisements for La Bare Da llas, a nightclub in Dallas. Kristi also attached a screen shot of the parking lot at La Bare Dallas. In a series of texts, Kristi said Nathan “paid the men” in the photogra phs “in cash” and told Nathan to “stop texting teenagers.” On or about July 29, 2021, Nathan’s divo rce lawyer reached out to Kristi in an attempt to negotiate a present value discount to pay off the entire remaining balance of the note. Kristi immediately re sponded that she would agree to the very first discount being considered, but sh e conditioned her acceptance on the entire transaction being closed and funded with in a period of hours. Given that no documents were yet drafted and because of the history between the parties, Kristi’s response was “at best suspicio us,” according to Nathan. Kristi was told that several days would be required to fund the tr ansaction and generate the necessary documentation. That same day, “within minutes” of the contact with Kristi, multiple envelopes that had been deposited in the United Stat es postal system on Ju ly 27, 2021, began arriving at the homes and businesses of Na than’s close friends, relatives, and close business associates. The envelopes we re mailed anonymously from various zip–4– codes near Italy, Texas, a nd they all contained an iden tical package of materials including a copy of Nathan’s and his date ’s July 5, 2021 arrest reports; their mug shots; a photocopied photograph of La Bare Dallas; and a photogra ph of the La Bare parking lot with the typed legend, “Woman’s Club that also caters to bisexual and gay males.” The petition alleged that the recipients of the packages were not random. Instead, each recipient was targeted from a private mailing list to which only Nathan or Kristi had access, and only Nathan or Kristi had knowledge of each recipient’s significance to Nathan and hi s businesses and an understa nding of the harm delivery of such a package would inflict on Nathan and his businesses. Based on these allegations, Nathan accu sed Kristi of sending the packages and asserted claims of intentional infliction of emotional distress, invasion of privacy: intrusion on seclusion, and public disclosu re of private facts. Specifically, the petition asserted Nathan suffered and conti nues to suffer severe emotional distress and humiliation because of Kristi’s “purposeful and ongoing attack upon him.” The petition contains nearly two pages alleging intentional a nd malicious actions taken by Kristi in sending the packages to the ta rgeted recipients. Regarding invasion of privacy, the petition asserted Kristi inva ded Nathan’s privacy by intruding on his solitude, seclusion, and private affairs or concerns.–5– PROCEDURAL BACKGROUND On September 20, 2021, Kristi filed motions to dismiss under both the TCPA and Texas Rule of Civil Pro cedure 91a. Kristi’s TCPA motion alleged she “had no role in the dissemination of these alleged mailings.” Even assuming for the sake of argument that Nathan’s account was true, Kristi argued, Nathan’s legal action was based on, “related to,” or in response to Kristi’s exercise of her right of free speech, right to petition, and right of association, and Nathan could not establish by clear and convincing evidence a prima facie case for each and every element of his causes of action. The motion attach ed the mug shots of Nathan and his date and a Farmers Branch arrest summary and asserted that all the matters that Nathan alleged were publicized were of legitimate public concer n and publicly availabl e. Further, the motion alleged the mailings consisted of public records, establishing a “clear bar” to Nathan’s recovery for invasion of privacy , and Nathan’s intrusion upon seclusion claim failed as a matter of law because he could not establish an intrusion or, alternatively, because any a lleged intrusion was not highly offensive to a reasonable
person. On October 1, 2021, the parties’ a ttorneys entered the following Rule 11 agreement: I am writing to memorialize our Rule 11 Agreement. Plaintiff agrees to waive any argument that Defendant Dr. Long has not or did not file her motions timely or has not or did not timely have the motions heard, or that the Court’s ruling was not tim ely pursuant to the Texas Rules of Civil Procedure, in exchange for Defendant’s consent to move her–6– hearings on her Motion to Dismiss and Anti-Slapp that are scheduled for October 15, 2021 to October 29, 2021. On December 3, 2021, the trial court he ld a hearing on both of Kristi’s motions to dismiss. On December 15, 2021, the tr ial court signed two c onflicting orders: (1) an order granting Kristi’s TCPA motion to dismiss but awarding no attorney’s fees and (2) an order denying the TCPA motion with the request for attorney’s fees to be considered at a subsequent setting. On December 28, 2021, the trial court signed an order vacating the order granting Kristi’s TCPA motion to dismiss; thus, only the trial court’s order denying Kr isti’s TCPA motion to dismi ss remained in effect. On January 18, 2022, the trial court signed an order granting Kristi’s 91a motion and dismissing Nathan’s causes of action with prejudice. The trial court crossed out the paragraph in the order provid ing for an award of attorney’s fees and added the handwritten notation “NEED separate order + hear ing” in the margin. On February 15, 2022, the trial court signed an “ord er vacating order denying defendant’s motion to dismiss TCPRC chap ter 27” in which it stated the order denying relief under the TCPA was “inadvertent error,” vacated that order in all respects, granted Kristi’s motion to dismi ss, and dismissed the case. The order further provided “[a]ny relief not GRANTED, is specifically denied” with the caveat that “[a]ny remaining issues regarding atto rney’s fees must be set for a hearing before the Court.” Nathan filed a motion for new trial, or alternatively a motion to reconsider on February 17, 2022, thirty days from th e order granting Kristi’s 91a motion and–7– dismissing the case with prejudice. The trial court did not rule on the motion for new trial, which was de nied by operation of law. 2 On May 13, 2022, the trial court conducte d a hearing on attorney’s fees at which Nathan’s attorney stated his belief that Kristi put on her entire case at the December 3, 2021 hearing and “closed it” without meeting her burden. Counsel noted that the trial court had not entered a “final, final order yet” but asserted that there was finality on Kristi’s TCPA claims, which were denied. Counsel argued that Kristi could therefore not get fees for a cl aim on which she did not prevail. Finally, counsel complained that Kristi’s counsel faile d to segregate his attorney’s fees. In response, Kristi’s counsel argued Rule 91a di d not require the tria l court to rule on the attorney’s fees issue within any allotte d time, and counsel fo r the prevailing party was not required to segregate attorney’s fees where discrete legal services advanced both recoverable and unrecoverable claims. On May 23, 2022, the trial court ente red an order awarding Kristi $15,003.68 in attorney’s fees on her TCPA motion to dismiss and ordering “that the Court will not award Defendant’s reasonable and necessa ry attorneys’ fees and costs incurred through the filing and prosecution of her 91a Motion to Dismiss.” This appeal followed.

2 We note that March 16, 2022, was thirty days from the granting of Kristi’s TCPA motion.–8– ANALYSIS We review de novo a trial court’s ru ling on a TCPA motion to dismiss. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 132 (Tex. 2019); Goldberg v. EMR (USA Holdings) Inc. , 594 S.W.3d 818, 827 (Tex. App.— Dallas, pet. denied) (citing Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018)). We review the merits of a Rule 91a mo tion de novo because the availability of a remedy under the facts alleged is a question of law and the rule’s factual-plausibility standard is akin to a legal-sufficiency review. City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
Issues 1 and 2 : TCPA Motion Whether the court erred in dismissing Plaintiff’s claims under TCPA given it had already twice, timely denied the motion, it lost subject matter jurisdiction and subsequently entered its Order No. 5, 73 days after its TCPA hearing took place. Whether the court’s untimely effort to vacate its December 15, 2021, Order No. 1 was an error or was voi d given (i) its untimeliness and its (ii) failure to vacate its December 28, 2021, Order No. 3 and (iii) the TCPA’s express language denying, by operation of law, motions not ruled on timely. We first address Nathan’s argument re lative to proceedings under the TCPA and his assertion that the trial court erred in “trying to vacate” its December 15, 2021 order denying Kristi’s TCPA motion to di smiss with its “untimely February 15, 2022, Order.” Nathan argues that, even if the trial court was able to vacate its December 15, 2021, order, Kristi’s TCPA mo tion to dismiss was denied by operation–9– of law. The trial court’s February 15, 2022 , order shows that, in addition to vacating its December 15, 2021, order, the trial court granted Kristi’s TCPA motion to dismiss, dismissed the case, and ordered that the issue of attorney’s fees had to be set for a hearing. We understand Nathan to contend that the trial court lost jurisdiction to take further action with re spect to Kristi’s TCPA motion 30 days after the December 3, 2021, hearing on the motion. As explained below, on this record we disagree that the trial court lost plen ary jurisdiction to vacate the order but agree that the trial court had no authority to en ter an order granting the TCPA motion more than 30 days after the hearing. When a motion to dismiss pursuant to the TCPA is filed, the trial court must rule on the motion not later than the 30th day following the date the hearing on the motion concludes. T EX
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. C ODE A NN . § 27.005(a). If a court does not rule on a motion to dismiss under the TCPA in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law, and the moving party may appeal. T EX
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. C ODE A NN . § 27.008(a). Nathan argues that, on January 2, 2022, the thirtieth day after the hearing on Kristi’s TCPA motion to dismiss, jurisdictio n under the TCPA expired. See T EX
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. C ODE A NN . § 27.005(a). The Supreme Court of Texas has held the TCPA does not impose a 30-day restriction on a trial court’s authority to vacate a ruling on a TCPA motion to dismiss, concluding:–10– While the TCPA imposes myriad deadlines, no statutory provision speaks to this issue. See id . §§ 27.001–.011. Section 51.014 of the Civil Practice and Remedies Code cons trains the trial court’s authority to act on a prior ruling, but only wh en an interlocutory appeal is pending. Section 27.005(a) requires a timely ruling, but says nothing about a trial court’s power to vacate such a ruling outside the statute’s 30-day deadline. To hold that the tr ial court had no power to vacate the dismissal order based on new pre cedent, as occurred here, would require us to “judicially amend” the TCPA “by adding words that are not contained in the language of the statute.” Lippincott v. Whisenhunt , 462 S.W.3d 507, 508 (Tex. 2015). Bu t we cannot do so because the statute’s “text is the alpha and the omega of the interpretive process.” BankDirect Capital Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 86 (Tex. 2017). Put simply, nothing in the statutory scheme prohibits trial courts from vacating their own orders when they otherwise have plenary power to do so. Here, once the trial court vacat ed its February 22 order, as it had authority to do, no ruling on the dismissal motion was in place. Accordingly, the motion to dismi ss was either ove rruled by operation of law for want of a timely ruling, see T EX
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. C ODE § 27.008(a), or denied by the trial court in a new trial. In this procedural posture, we need not consider whethe r the trial court’s order granting a new trial restarted the trial clock and permitted a new hearing and ruling on the dismissal motion, because even if it did not, the same result ensues
. Whether the trial court properl y denied the defendants’ TCPA motion or whether it was overruled by operation of law on vacatur of the prior order, the defendants can seek relief by interlocutory appeal as the Legislature contemplated. In re Panchakarla , 602 S.W.3d 536, 540–41 (Tex. 2020) (orig. proceeding) (per curiam). We follow Panchakarla ’s lead, applying the rules of statutory construction: The proper construction of a statute is a question of law we review de novo. Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011). When a statute’s language is unambiguous, “we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results.” TGS-NOPEC Geophysica l Co. v. Combs , 340–11– S.W.3d 432, 439 (Tex. 2011). “We presume the Legislature included each word in the statute for a purpos e and that words not included were purposefully omitted.” Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015). We construe statutes and related provisions as a whole, not in isolation, Helena Chem. Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001), and as a general pr oposition, we are hesitant to conclude that a trial court’s jurisdiction is curtailed absent manifestation of legislative intent to that effect, cf. City of DeSoto v. White , 288 S.W.3d 389, 393 (Tex. 2009). In construing the TCPA, we are also mindful that it “does not abrogate or lessen any othe r defense, remedy, immunity, or privilege available under other cons titutional, statutory, case, or common law or rule provisions,” and it must be “construed liberally to effectuate its purpose and intent fully.” T EX
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. C ODE § 27.011. In TCPA cases, the Legislature has expressly constrained trial-court authority over TCPA orders in a very limited way: by making interlocutory orders denying TCPA dismissal motions immediately appealable and automatically stayi ng all trial court proceedings until a perfected interlocutory app eal has been concluded. See id . § 51.014(a)(12), (b). But the TCPA is s ilent about a trial court’s authority to reconsider either a timely issu ed ruling granting a TCPA motion to dismiss or a timely order denying su ch a motion when no interlocutory appeal is pending. Construing the statutory scheme as a whole, and giving weight to the language the Legislature included and excluded, we hold that the TCPA does not impos e a 30-day restriction on a trial court’s authority to vacate a ru ling on a TCPA motion to dismiss. Id. at 540. In this case of first impression, we answer a question left open by Panchakarla : whether a trial court with authority to vacate an order when it has plenary power to do so can thereafter affi rmatively rule on the TCPA motion more than 30 days after the hearing. See T EX
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. C ODE § 27.005 (court must rule not later than 30th day following da te of hearing concludes). In construing the statutory language and consistent with the Panchakarla court’s analysis, we–12– conclude that the trial court had no authorit y to grant the TCPA motion 75 days after the hearing. The trial court retained plenary power when, by order dated February 15, 2022, it vacated its order denying Kristi’s TCPA motion to dismiss. In accordance with Panchakarla , this put the case back in the procedural posture wherein the motion was deemed denied by operati on of law. In this case, unlike Panchakarla , procedurally, the order vacating a denial of the TCPA motion is a distinction without a substantive difference. See Panchakarla , 602 S.W.3d at 541. Rather than being an express denial, the motion is deemed de nied by operation of law. This presents the procedural posture of a failure to rule. Id at 540–41. We must, however, address that portion of the February 15, 2022, order that granted Kristi’s TCPA motion and dismissed the case. The TCPA is clear that the trial court has the authority to rule on a motion within 30 days after the hearing; otherwise it is deemed denied. To permit th e trial court to grant the motion after 30 days have passed is directly contrary to the express statutory language. Section 27.005(a) requires a timely ruli ng, with consequences fo r a failure to rule, and permitting an immediate interlocutory appeal from the deemed denial. To hold that the trial court had power to rule, i.e . grant a motion 75 days after the hearing would require us to “judicially am end” the TCPA “by adding wo rds that are not contained in the language of the statute.” Lippincott , 462 S.W.3d at 508. But we cannot do so because the statute’s “text is the alpha and the omega of the interpretive process.”–13– BankDirect Capital Fin. , 519 S.W.3d at 86. While the trial court has plenary power to vacate its ruling, thereby in this contex t putting it in the procedural posture of a deemed denial, we conclude that does not provide the concomita nt power to enter an order granting a dismissal after the st atutory 30-day deadline from the hearing date. 3
We have concluded the tria l court had authority to vacate the December 15, 2021 order, which had th e effect of the motion to dism iss being deemed denied. We have determined the trial c ourt had no authority to thereafter grant the TCPA motion; therefore, we sustain Nathan’s first and s econd issues to that extent. In all other respects, we overrule Nathan’s first and second issues. Nathan’s third issue is rendered moot by our disposition of his first issue. 4 As no timely interlocutory appeal was taken, we address the ra mifications of the deemed denial relative to the May 23, 2022, final or der and the award of attorney’s fees under the TCPA under Nathan’s fifth issue.

3 To conclude otherwise could lead to absurd r esults. While the timeline on this record reflects a wholesale failure to faithfully promote the expeditious resolution under two separate dismissal proceedings, it was at least less than six months from the hearing. Any interpretation that wo uld permit a trial court to take affirmative action, other than to vacate a ruling af ter 30 days, could lead the trial court, sua sponte or at the behest of the parties, to reconsider its ruling on the eve of trial. That is well beyond what the Legislature contemplated in its statutory construct.
4 Nathan’s third issue is whether, “alternatively, the court erred in dismissing Plaintiff[‘]s claims as Defendant failed and he satisfied any bur dens the TCPA may have placed on them.”–14– Issue 5: Whether the court erred in awarding any attorney fees to Defendant pursuant to the TCPA. In his fifth issue, Nathan complains that the trial court erred in awarding Kristi attorney’s fees under the TC PA. The TCPA requires th at, “if the court orders dismissal of a legal action under this chapter, the court: (1) shall award to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal action.” T EX
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. C ODE § 27.009(a)(1); see also Sullivan v. Abraham , 488 S.W.3d 294, 299 (Tex. 2016). Th e procedural posture after the February 15, 2022 order vacating the order to dismiss is that no ruling was signed within 30 days of the hearing; therefor e, the TCPA motion was deemed denied by operation of law. As we ha ve determined that the tria l court had no authority to grant the dismissal, it concomitantly had no authority to award attorney’s fees on May 23, 2022, for a motion deemed deni ed by operation of law, for which no interlocutory appeal was take n. We sustain Nathan’s fifth issue to the extent we conclude Kristi is not entitled to attorney ’s fees and reverse and render judgment that Kristi take nothing on her claim for attorney’s fees. 5 Issue 4: Whether, alternatively, the court erred in dismissing Plaintiff’s claims as Plaintiff fully satisfied the minimal, pleading obligations TRCP 91a placed on him requiring the motion be denied.

5 We note that when the court denied the motion on December 15, 2021, it was to consider an award of costs and attorney’s fees at a subsequent setting. “If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.” See T EX

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. C ODE A NN . § 27.009(b). As the procedural posture is deemed denied by operation of law, and the record reflects no prior finding by the court that the motion was frivolous or solely intended for delay, we reverse and render as opposed to reverse and remand.–15– We first note that the trial court’s Ja nuary 18, 2022 order di smissing Nathan’s causes of action under Rule 91a was not a fi nal order because it clearly reflected the trial court’s notation “NEED separate order + hearing” indicating an intention to address the issue of attorney’s fees in a separate order following a hearing. See Carroll v. Metro Off. Equip., Inc. , No. 02-22-00087-CV, 2022 WL 1682156, at *1 (Tex. App.—Fort Worth May 26, 2022, no pet.) (mem. op.) (dismissal order under Rule 91a not final where claim for attorney ’s fees remained pending). A motion to dismiss under Rule 91a must be granted or denied within 45 days after the motion is filed. T EX
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. P. 91a.3(c). However, the 45-da y deadline for ruling on a motion to dismiss under Rule 91a is not jurisdictional . In re Joel Kelley Ints., Inc ., No. 05- 19-00559-CV, 2019 WL 2521725, at *1 (Tex. App.—Dallas June 19, 2019, orig. proceeding) (mem. op.). Four months after issuing its order di smissing Nathan’s causes of action under Rule 91a, the trial court entertained Kristi’ s request for attorney’s fees and entered the May 23, 2022 order denying attorney’s f ees under Rule 91a and disposing of all issues. Nathan timely appealed from that order. To the extent Nathan argues the trial court lost jurisdiction to act prior to the issuance of its May 23, 2022 order as to Rule 91a dismissal, we reject his argument. We therefore address that portion of Nath an’s fourth issue in which he asserts dismissal was not warranted under Rule 91a. Texas Rule of Civil Procedure 91a–16– provides that a party “may move to dismi ss a cause of action on the grounds that it has no basis in law or fact.” T EX
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. P. 91a.1. In ruling on a Rule 91a motion, a cour t “may not consider evidence . . . and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59.” Id. 91a.6; see also T EX
. G OV ’ T C ODE A NN . § 22.004(g) (“The supreme court sha ll adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence. The rules shall provide that th e motion to dismiss shall be granted or denied within 45 days of the filing of the motion to dismiss.”). We review de novo a trial court’s ruling on a Rule 91a motion to dismiss. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C ., 595 S.W.3d 651, 654 (Tex. 2020). Nathan argues the trial court erred in granting the Rule 91a motion because he “satisfied all notice, pleading and le gal burden(s)” asserting three causes of action: intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and invasion of privacy by public disclosure of private facts. In averring that the trial court properly di smissed Nathan’s claims under Rule 91a, Kristi does not challenge the existence of each of the causes of action under Texas law; rather, Kristi challenges the factual alle gations as pled as failing to satisfy one element of each cause of action and a sserts “the allegations taken as true affirmatively demonstrate that [Nathan’s] cl aims have no basis in law.” In doing so, Kristi conflates the grounds for obtaining dismissal under Rule 91a with the grounds–17– for granting a motion for summary judgment, and we decline to follow Kristi’s reasoning in this regard. Rule 91a provides a harsh remedy and should be strictly construed. Davis v Homeowners of Am. Ins. Co ., No. 05-21-00092-CV, 2023 WL 3735115 at *2 (Tex. App.—Dallas May 31, 2023, no pet.) (mem. op.); Renate Nixdorf GmbH & Co. KG v. TRA Midland Props., LLC , No. 05-17-00577-CV, 2019 WL 92038, at *10 (Tex. App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.); In re RNDC Tex., LLC , No. 05- 18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.—Dallas June 11, 2018, orig. proceeding) (mem. op.). Rule 91a is not a substitute for special exception practice under rule 91 or summary judgment practic e under rule 166a, both of which come with protective features against precipita te summary dispositions on the merits. Royale v. Knightvest Mgmt., LLC , No. 05-18-00908-CV, 2019 WL 4126600, at *4 (Tex. App.—Dallas Aug. 30, 2019, no pet.) (mem. op.). A cause of action has no basis in fact “if no reasonable person could believe the facts pleaded.” T EX
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. P. 91a.1. The “no basis in fact” prong of Rule 91a.1 relates to the believability of the facts al leged by a plaintiff in pleading a cause of action and, thus, seldom rises to a point of contention in the case law. The “no basis in fact” prong is a “factual plausibility standard.” Sanchez , 494 S.W.3d at 724;
Davis , 2023 WL 3735115, at *2. A cause of action alleged by a claimant has no basis in law “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the cl aimant to the relief sought.” T EX
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. P.–18– 91a.1. In assessing whether the non-movant’s pleading has no basis in law, we apply a fair-notice pleading standard to determ ine whether the allegations of the petition are sufficient to allege a cause of action. Thomas v. 462 Thomas Fam. Props., LP , 559 S.W.3d 634, 639 (Tex. App.—D allas 2018, pet. denied); Davis , 2023 WL 3735115, at *3. A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Thomas , 559 S.W.3d at 639–40. “Even the omission of an element is not fata l if the cause of action may be reasonably inferred from what is specifically stated.” Id. at 640 (quoting In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)). We limit our review to the four corners of the live pleading, the First Amended Petition, and the exhibits attached thereto. See T EX
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. P. 91a.6. A de novo, four-corners review shows th at all of Nathan’s causes of action have a basis in law as well as a basis in fact. Specifically, a claim for intentional infliction of emotional distress has four elements: (1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outra geous; (3) its actions caused the plaintiff emotional distress; and (4) the emoti onal distress was severe. Hersh v. Tatum , 526 S.W.3d 462, 468 (Tex. 2017). Kristi ch allenges element number tw o, averring that Nathan cannot meet the high standard for extreme a nd outrageous conduct. To establish an actionable invasion of privacy of th e type Nathan alleges—intrusion upon seclusion—a plaintiff must show (1) an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which–19– (2) would be highly offensiv e to a reasonable person. Valenzuela v. Aquino , 853 S.W.2d 512, 513 (Tex. 1993); Moore v. Bushman , 559 S.W.3d 645, 649 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Kristi ch allenges the first element asserting Nathan’s failure to articulate in what manner Kristi accessed his “private data” whether by physical invasion or otherw ise. Finally, a plaintiff alleging public disclosure of private facts must show (1 ) publicity was given to matters concerning his private life; (2) the publication of su ch matter would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of legitimate public concern. Indus. Found. of the S. v. Tex. Indus. Acc. Bd. , 540 S.W.2d 668, 682–83 (Tex. 1976); Robinson v. Brannon, 313 S.W.3d 860, 867 (Tex. App.—Houston [14th Dist.] 2010, no pet. ). Kristi challenges the third element, asserting that criminal ma tters are of public record and therefore a matter of legitimate public concern. We agree with Nathan that, on this record , he satisfied the fair notice standard of his claims and allegations and satisfi ed the basis-in-fact component. Kristi’s single element challenge does not overcome the factual plausibility standard, and, upon reviewing the live pleading, we conc lude it is possible a reasonable person could believe the facts as pleaded. Furthe r, Nathan’s causes of action do not meet the two circumstances wherein a court may determine there is no basis in law under Rule 91a: (1) where the plaintiff fails to plead a legally cognizable cause of action or (2) where the allegations in the plainti ff’s own pleading establish a complete legal–20– bar to the plaintiff’s claims by affirma tively negating entitlement to the relief requested. See Reaves v. City of Corpus Christi , 518 S.W.3d 594, 608 (Tex. App.— Corpus Christi–Edinburg 2017, no pet.). Kristi’s single element challenge does not implicate either circumstance. As Nathan’s causes of action each had a basis in fact and law, we conclude his cl aims were therefore improperly dismissed under Rule
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. P. 91a.1. We sustain Nathan’s fourth issue to the extent he asserts dismissal was not warranted under Rule 91a. We reverse the trial court’s judgment dismissing Nathan’s claims under the TCPA and Rule 91a and awarding attorney ’s fees under the TCPA, render judgment that Kristi take nothing on her claims under the TCPA, and remand for further proceedings consistent with this opinion.

220589F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–21– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT NATHAN LONG, Appellant
No. 05-22-00589-CV V. DR. KRISTI LARSON LONG, Appellee On Appeal from the County Court at Law No. 5, Dallas County, Texas Trial Court Cause No. CC-21-03491- E. Opinion delivered by Justice Goldstein. Justices Pedersen, III and Smith participating. In accordance with this Court’s opinion of this date, the judgment of the trial court dismissing Nathan Long’s claims under the TCPA a nd Rule 91a and awarding attorney’s fees under the TCPA is REVERSED , and judgment is RENDERED that Dr. Kristi Larson Long take nothing on her claims under the TCPA. We REMAND this cause to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellant NATHAN LONG recover his costs of this appeal from appellee DR. KRISTI LARSON LONG.
Judgment entered this 29th day of November 2023.