## In the C o urt of Appeals Second Appellate D istrict of T exas at Fort Worth

___________________________ No. 02

- 21

- 00107

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 20

- 8768

- 158
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Ju stice Kerr 

### J AMES 

### M ILLER 

### , Appellant

V


### . H EATHER 

### S CHUPP 

### , Appellee2 ME M ORANDUM OPINION
I. I ntroduction
A p pellant James Miller challenges the trial court’s order granting Appellee Heather Schupp’s Texas Citizen Participation Act motion and dismissing his defamation suit against Schupp , who is his ex

- wife.
M iller su ed Sc h upp for defamation after she mad e alleged ly defamatory statements about him to his sister and to a friend. Miller claims that in September or October 2020, Schupp contacted Miller’s sister and told her that Miller had confided
in her that his mothe r had sexually molested him when he was a chi ld. Miller further
al leg es that Schupp told his sister in the same call that (1) h e was addicted to crack, (2) he was fired from his job after he was charged with a crime, and (3) he had beaten
her. Miller also cl aims that i n July 2020, Schupp sent his friend A sher Creppel an Instagram message stat ing that (1) Miller had physical ly abused her, his sisters, and many women in in his life; (2) the “police were called on many occasio ns” as a resul t of Miller’s physical violence; and (3) as a result of Miller’s acts of physical violence, the Austin police department had “[s]everal hund red pages

. . . on [Miller] alone.”
S chupp filed a TCPA motion to dismiss Miller’s suit cla iming that she had merely exercise d her free

- sp eech rights. Mill er fi l ed a respons e with attached evidence that he argued established a prima facie case for each essential element of his
de famation claim

. The trial court found that Miller d id not meet hi s burden to establish a prima fac ie showing that his claim was meritor ious ; thus , t he trial court3 granted Schupp’s motion , dismissed Miller’s suit, a nd awarded Schupp $26,624.93 in
trial

- court attorney’s fees, $5,000 in sanctions, and $25,000 in conditiona l appellate
fees.
Becaus e we conclude that the tr ial cour t’s ruling was erroneous , w e reverse the
trial court ’ s order dismiss ing Miller ’ s suit and award ing attorney ’ s fees and sanct ions.
We remand this matter to the trial court for f urther proceed i ngs consistent with t his opinion

. II. L aw T exas Civil Practic e & Remedies Code Chapter 27 , also known as the Texas Citizens Participation Act , is an anti

- SLAP P statute. 1 See Tex. Ci v. Prac. & Rem. Code Ann. §§ 27.001

- .011

. The TCPA ’ s purpose i s “to encourag e and safeguard the
constitutiona l rights of persons to peti ti on, speak freely, associate freely, and otherwise participate in gover nment to the maximum extent permitted by law and, at the same time, protect the rights of a person to file mer itorious lawsu i ts for demonstrabl e injury.” Tex . Civ. Prac. & Rem. Code An n. § 27.002. Put another way, its purpose i s t o prote ct citizen s who petition o r speak on mat ters of public concern from retaliating lawsuits that seek to intimidate or sil ence them. In re L ipsky , 460 S.W.3d 579, 584 ( Tex. 2015) ( orig. proceeding ).

1 “SLAPP” is an acronym for “Strategic Law su i ts Against Public Participation.” See In re Lipsky , 4 11 S.W.3d 5 30 , 5 36 n.1 (Tex. App.

— Fort Worth 201 3, orig. proceeding )

.4 T he TCP A uses a three

- step process to resolv e whether a claim is subject to its
stri ctures and, if so, whether the claim should be dismissed or allowed to proceed because it appears to hav e merit. The t h ree steps are a s follows : ( 1) th e party invoking
the TCPA an d s eeking dismissal must demonstrate that a “legal act ion” has been brought against it that is “based on or is in response to” an exercise of protected free

speech r ights , petition rights , or ass o ciation rights ; ( 2) if the movin g party satisfie s step o ne, the trial court nevertheless “ may not dismiss a le gal action

. . . if the party bringing [ the su it] establishes by clear and specific evidence a prima facie case for each
essential element of the claim in question[;]” and ( 3) if the nonmoving party carries its

ste p

- two burden, the case may still be dismissed “if the mov ing party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law

. ” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)

– (d). When re v iewing a T CPA ruling , w e view the pleadings and the evidence in the light most favorable to the nonmovant. Ma gg ret v. Rams ey ’ s Rods & Res toration , No. 02

- 20

- 00395

- CV , 2021 WL 2253244 at * 2 (Tex . App.

— Fort Wort h June 3, 2 021 , no pet. ) ( mem. op. ) ; S tallion O ilfield Servs., Ltd. v. Gravity Oilfield Servs., LLC , 592 S.W.3d 205,
21 3

– 1 4 (Tex. App.

— Eastland 2019, pet s . denied). We review de novo a t rial court’s ruling on a moti on to dismiss, including whether each party h as met its res p ective burden

. United Food & Com . W orkers Int’l Union v. Wal

–

Mart Stores, Inc. , 430 S.W.3d 508, 511 (Tex. App.

— Fort Worth 2014, no pet.).5 III. A nalysis
A. F ree - S peech Rights 2
T he first question in our TCPA analysis is whether Miller’s laws uit is “b ased

on [ , relat e s to, ] or is in response” to Schup p’s free

- speech rights

. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).
A n “ [e] xercise of the right of free speech” is defined as “a communication made in connection with a matter o f p u b l i c c o n c e r n .” Id . § 27.001(3).
“C o mmunication” includes “the making or submitting of a statement or document in any form or m edium, including . . . electronic.” Id . § 27.001(1). P ublic

- concern mat ters include statements regarding the commission of a crime

. Brady v. Klentzman , 515 S.W.3d 8 7 8, 884 (Tex. 2017); MediaO ne, L.L .C. v. Henderson , 592 S.W.3d 933,
940 (Tex. App.

— Tyle r 2019, pet. denied) (ho lding that publication reporting criminal activity was a public

- concern matter ).
S chupp’s Instagram message to Cr eppel is a communi ca tion. See Te x . Civ. Prac.
& Rem. Code A nn. § 2 7.001(1); Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (stating that the TC PA applies to both public and private communication s ). And Schupp’s message that Miller physically abused her and other wo men is a cla i m

2 Schupp does not argue that Miller ’s claims implicate he r right to petition or her right of ass ociation.6 that Miller committed nu merous assaul ts 3 and is thus a statement regarding a public

concern matter
. See Tex. Penal C ode Ann. § 22.01(a)(1) ( “ A person commits an offense if the person

. . . intentionally, knowingly, or recklessly causes bodily in ju ry to anothe r , including the pers on’s spouse ” ) ; Brady , 515 S.W.3d at 884; Media One, L.L.C. , 592 S.W.3d at 940. Because Schupp’s message was made in connection with a public

concern matter , it constituted an “exercise of [her] right of free speech,” as th at term is def i ned in the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001( 3).

B. C le ar and Specific Evidence
B ecause Schupp demonstrated that Miller’s lawsuit implicated her free

- speech rights , to prevent the lawsuit ’ s dismissal the burden shifted to M i ller to prove , by clear and specif ic evidenc e, a prima facie case for each essential e lement of his claim against
her. See i d

. § 27.005(b) ( requ iring the court to dismiss the action if the movant shows that the action relates to the exercise of the right o f fr ee speech ) , (c) (providing tha t the court m ay not dismiss the action if the opponent “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question”). The TCPA’s undefined terms “clear” and “specific ” hav e been in t erpreted according t o their plai n meaning s . “Clear” has been defined as “unambiguous,” “sure,” or “free from doubt.” Lipsky , 460 S.W.3d at 590. “Specific” has been defined as “explicit” or

3 Th ese alleged offense s may also qualify as f a mily

- violence act s . See Tex. Fam. Code Ann. § 71.004(1) (stating that family violence is an act by a member o f a family or household against another member of t he family or household that is intended to result in physical harm, bodily inj ury, assault, o r s exual assau lt).7 “relating to a particular named thing.” Id . “Prima f a cie c ase” ref e rs to the “minimum
q uantum of evi dence necessary to support a rational inference that the allegation of
fact is true.” Id

. T o prevail on his defamation action , Miller must prove (1) the publication of a false fact statement to a third party , (2) that d ef a m ed him , (3) made wit h the requis ite degree of fault, and (4) damages. Id

. at 593. Pleadings and evidence that establish the facts of when, where, and what was said, the defamatory nature of the statements, a nd how they damaged the plai n tiff are suffici en t to defeat a TCPA mot ion to dismi ss. Id

. at 591. To carry his b urden, Miller need tender o nly the minimum amount of evidence to support a rational inference of each defamation

- claim element

. Id . at 591.
M iller argues that Schupp’ s statement s constit ute d e famation per se bec aus e they are the type of statements that injure his reputation and subject him to public hatred , contempt, ridicule, or financial injury. 4 To prove a defamation

- per

- se claim, Miller must prove only the first t hree de f ama tion ele m ents , as he would be entitled to recover general damages without proof of any specific loss. Innovative Block of S

. Tex ., Ltd. v. Valley Builders Supply , Inc. , 603 S.W.3d 409, 418 (Tex. 2020) ( holding when defamation is per se, the communica tion is action a ble in and of itself without actu al

4 During the hea ring on Schupp’s motion to dismiss, Schupp acknowledged that Miller’s petiti on includes a claim of defamation per se.8 damages proof ); Lipsky , 460 S.W.3d at 59 3

. D efamation

- per

- se statements are deemed so obviously harmful that damages are presumed. 5 Id

. M iller alleges that falsely accusing someone of physical ly abusing “ many women” co n stitutes d efamation per se. We agree. See id

. at 596 (stating that accusing

5 Miller cla ims that even though he is not required to, he has provided suffici ent proof of da ma g es. Miller states, Starting in September 2020, I have been prescribed and began having to take anti

- depression medication, medication to help with sleep, medicat ion to hel p concentrate, and medication to treat my cramps and other stomach

- related issues. P r ior to my learning of Defendant Schupp’s false statements, I had never experienced any of these issues or have had to take any of the medications I must now take

.

. . . Af ter I learned of Defendant Schupp’s false statements in Aug ust 2020 (as se t o ut in this lawsuit), I was no l onger able to regularly sleep, have been unable to concentrate, have suffered significant weight gain, have felt despondent and de pressed and have s uffered a loss of self

worth, began experiencing severe anx iety, and began s u ffering severe stomach cramps.

. . . As a result of these issues, I have been unable to perform at work at the level I am normally accustomed to. I have lost sa les

— and the commiss ions that come with those sales

— as a result of my experien cing the issues s e t out above. I have been passed over for promotion at work because of my experiencing these same issues and because of the false statements made by Defendant Sch upp and conveyed to my supervisor David Treadway. [Miller’s boss] We need not decid e w hether Miller provided sufficie nt evidence of damages because of our holding that Schupp’s statements constitute defamation per se. See Innovative Block , 603 S.W .3d at 418.9 someone of a crime is an example of defamation per s e ); Leyende cker & Assocs ., Inc. v.
Wechter , 683 S.W.2d 369, 374 (Tex. 1984) (op. on reh’g) (explainin g that a fal se

statement c h arging s omeone with committing a crime is defamatory per se). B ec ause defamation per se meets the second and fourth elements, see Innovative Block , 603 S.W.3d at 418 , t o determine , then , whether Miller’s defamation action survived
Sc hupp’s T CPA motion to d is m iss, we look only for clear and s pecific evidence of the
firs t and third elements.
1
. F a lse

- statement publication eviden ce I n his petition and affidavit, Miller claims that in September or October 2020, Schupp contacted Miller’s sist er and told her t ha t Miller had confided in Sc hupp th at his mother had sexually mol ested him when he was a child. Mil ler further states that Schupp told his sister that he was addicted to crack, he had been fired from his job
after being charged w ith a crime, an d h e had beaten her. Miller a lso claims that in July
202 0, Schupp sent Creppel the Ins tagram message that we detailed a bove. Miller
claims that all Schupp’s stateme nts are false

— “both i n their particular details and in the main point, essence [,] or gi s t in the context in which they we re made.”
S chup p does not dispu te the publication of her statement to Creppel. The evidence Miller offered

— that ( 1) he had never physically assaulted Schupp, his sisters,

or “ many women,” ( 2) he never told Schupp that his mot her had sexually abused him, ( 3) his employmen t had never been terminated because he was charged with committing a crime, and ( 4) he had never abused or been addicted to drugs

— was10 clear and specific eviden c e of the stat e me n t s ’ false nature

. See Lipsky , 460 S.W.3d at
590.
S chupp’s claim that Miller ha d physically abused her implies at the very least
that Mil ler had personal knowledge regarding the alle ged assaults. Assu ming no witness was pre sent , Mill e r was th us in a position to refute the claim but could hardly

o ffer m ore than h is denial. This situati on is similar to the one we faced in Van Der Linden v. Khan , a case in which the defendant allegedly said that the plaintiff had told
her that he h ad given money to a terrorist org anization, and the plaintiff denied that he had made the statement. 535 S.W. 3d 179, 198 (Tex. App.

— Fort Worth 2017, pet. denied). We n oted that where there w ere only two parties to the communication, the plaintiff could do no more than de ny h a ving m ade the statement. Id . He re, as in Van Der Lind en , the clash between Schupp’s state ment that Miller physically abused her and Miller’s denial that he did so is some evidence that Schupp spoke falsely. See i d

.; see also Miller v. W atkins , No. 02

- 20

- 00165

- CV, 2021 WL 924843, at *11 (Tex. App.

— Fort Worth Mar. 11, 2021, no pet.) (mem. op.) ( holding that the clash between a statement that an action occurred and the denial that it did is evidence that the person
maki ng the statement spok e falsely).
A nd a s for Schupp’s statement that Mill er had physically abused “many women
in his life ” before h er , Miller ’ s only option, beyond obtaining affidavits denying abuse from every woman he has known , was to deny that he had. A gain , Miller would hav e p ersonal know le d ge.11 S ch upp argues that M iller di d not dispute every statement in her message to Creppel and thus failed to offer clear and specific evidence of the message ’ s falsity

. Specifically, Schupp points to her statements i n the mess age t o C reppel t hat ( 1) the
p olice had as sisted her after Miller physically abused her and ( 2) the police had amassed hundr eds of pages of records related to Miller’s abuse of her and other

women. Schupp claims that because Miller did not d eny these stat e me n ts, Miller faile d
to off er clear and specific evidence of the me ssage ’ s fals e nature. As we recently explained, however, we are not required to determine that each and every statement that a defendant made is defamatory to conclude that a plaintif f c arried his bu rde n to establish a viable defamation claim

. See Miller , 2021 WL 924843, at *9

. Instead, the inquiry is whether Mi ller presented sufficient proof to establi sh the claim ’ s viab ility , a task that requires onl y that we determine whether a ny of S c hupp ’ s statements we re defamatory

. Id . As we explained,
W hile the TCPA requires that each legal claim be analyzed individually, the TCPA does not require that each factual basis or theory of recovery underpin ning a cause of action must b e analyzed sepa ra t ely. Tex. Civ. Prac. & Rem. Code § 27.005(c). Here, Appellees have a single defamation cause of action, which is based upon stat ements made by [Appellant] in a flyer he publicly distributed and a sign he publi cly displayed. If Appellees a re success ful i n p resenting prima facie proof in su pport of their defamation claim as to any of the statements in the flyer or sign, then Appellee s will have met their burden under the second step. See . . . Bui [ v. Dangelas , No. 01

- 18

- 01146

- CV], 2019 WL 5151410, a t *5 [( T ex. App.

— Houston [1st Dist.] Oct. 15, 2019, pet. denied) (mem. op.)]; see generally Landry’s, Inc. [ v. Animal Legal Def. Fund ], 5 66 S.W.3d [41, ] 53

– 57 [(Tex. App.

— Houston [14th Dist.] 2018, pet. granted)]. The TCPA does not require that A ppellees p roduc e e vidence that each and every state ment in [Appellant’s] flyer is defamatory to meet their burden12 under the TCPA[ ] or to prove the ir cause of ac tion at a trial on the merits. Rather, Appellees must establish “a prima facie case for each es sential el ement ” o f their defamation claim against [Appellant]. Tex. Civ. Prac. & Rem. Code § 27.005(c). I

d

. (citing Stone v. Melillo , No. 14

- 18

- 00 971

- CV, 2020 W L 6143126, at *6 (Tex. App.

— Houston [14th Dist.] Oct. 20, 2020, n o pet.) (mem. op.)).
M iller h as satisfied hi s b urden of providing clear and spec ific evidence that Schupp published a false statement to a third party. See Tex. Civ. Pra c. & Rem . Code Ann. § 27.005(c).
2
. N egligence evidence
A s to the third element, whether the publications were m ad e with the re qu i site degree of faul t , Miller’s st atus determines the fault degree applied

. See Lipsky , 460 S.W .3d at 593. Because Miller was a private individual when Schupp made the

statem ents , rather than a public figure or official, Miler need prove o nly t hat Schupp

a c ted with negligence. See WFAA

– TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998) (explaining that a private plaintiff must prove on ly that the defendant “was at least negligent,” whereas a public officia l or public figure must establis h act ual malice )

. I n his pleadings and a ffidavit, Miller asserts that Schupp acted negligently because she made the complain ed

- of statements knowing the y were false or without regard to the statements ’ false nat ure . See D Mag

. Partners, L.P. v. Ro senthal , 529 S. W. 3 d 429, 440 (Tex. 2017) (holding that a person acts with negligence if she knew or should
have known that the defamatory statement was false).13 S chupp, on the other hand, argues that Miller fail ed to offer clear and specific proof that s he “knew or sho ul d have known that the statements r egarding her physical abuse . . . were false.” Schupp further argues that allowing the same evidence to prove fal sity to also prove the req uisite f au lt degree is “circular” and “does not satisfy th e c lear or specific requirement or e stablish a prima facie case.” We disag ree. A ccording to Schupp, Miller physically abused her on many occasions. But either Miller phy sic ally abused Schupp on many occasions or he di d not
. Only Sch up p and Miller know the truth. B ecau se Schupp know s the truth , i f Miller did not physically abuse her on many occasions, her assertion to the con trary was not only false but also was made w ith kno wledge of its falsity

. In other words, if it was false, Schu pp knew it was false; if it was true , Schupp knew that it was true. And, under these narrow facts, any evidence that proves that Sc hupp’s assertion was false would also logically and necessarily p ro ve that Schupp knew that her assertion was false.
B y holdi ng under the circumstances unique to this case that the same evidence that proves falsity also proves the requi site liability s tand ard , we do not dispense with
the fault element . We merely acknowl e dge that if the facts conclusively prove tha t the publisher o f a defamatory statement had perso nal knowledge of whether the

stat ement was true or false, proving the statement false also suffices to prove that the defamat ory publisher acted with knowledge of the statement’s falsity when she published it.14 T hus, for th e same reasons that Miller met his burden under the TCPA to provi de by clear and specific evidence a prima facie case for falsity, Mil ler has also satisfied his burden of providing clear and spe cific evidence that Schupp acted negligently when she publis he d the complained

- of statement s. Se e Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
IV. Conclusion
B ecause we hold that Miller met his burd en of producing clear and specifi c evidence of a prima facie case for each essential defamation

- per

- se el ement , we

reve r se t he trial court ’ s order dis missin g that claim. Furthe r, we reverse the trial

court ’ s award of attorney ’ s fees a nd sanctions. See id

. § 27.00 9 (a)( 1) , (2). Finally, we remand this matter to the tr ial court to allow Schupp the opportunity to attem pt to

esta bl i sh an affirmative defense or o the r ground upon which she might be entitled to judgment as a matter of law (i.e. , the third step of the T CPA analysis)

. See id

. § 2 7.00 5 (d).

/s/ Elizabeth Kerr E lizabeth Ker r Just ice Delivered: January 6, 202 2