NUMBER 13-22-00452-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

CHILDREN’S LIGHTHOUSE, SPRING, Appellant,

v.

AMY DAVISON AND TORRI DAVISON, Appellees. 

 

On appeal from the 284th District Court

of Montgomery County, Texas. 

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Chief Justice Contreras

Appellant Children’s Lighthouse, Spring (CLHS) challenges the trial court’s 

dismissal of a business disparagement lawsuit it brought against appellees Amy and Torri 

Davison. CLHS argues by two issues that the court erred by: (1) determining that the 

Texas Citizens Participation Act (TCPA) applies to its suit, and (2) excluding certain 
2

evidence in determining whether to dismiss the suit pursuant to the TCPA. We affirm.1

I. BACKGROUND

CLHS is a children’s daycare facility located in Spring, Texas. On May 6, 2022, 

CLHS filed suit against the Davisons alleging that they made false accusations of abuse 

and mistreatment by CLHS staff against their child. The petition stated that the Davisons 

made the allegedly disparaging comments in an email to the facility’s director, in social 

media posts, and in a television interview. According to the petition, the Davisons’ 

comments directly caused a drop in enrollment and caused CLHS to lose revenue. CLHS 

sought actual and exemplary damages and attorney’s fees.

The Davisons filed a motion to dismiss under the TCPA on July 11, 2022. On 

August 19, 2022, CLHS filed a motion for leave to file a response to the TCPA motion 

along with the proposed response itself, which was accompanied by various evidentiary 

exhibits. The Davisons then filed an objection to CLHS’s motion for leave, as well as 

objections to the evidence attached to CLHS’s response. After a hearing on August 26, 

2022, the trial court signed an order: (1) overruling the Davisons’ objection to CLHS’s 

motion for leave to file a late response, (2) sustaining at least one objection as to each of 

CLHS’s exhibits, (3) dismissing CLHS’s suit, and (4) denying the Davisons’ request for 

attorney’s fees. This appeal followed.

II. DISCUSSION

A. Applicable Law and Standard of Review

The TCPA is intended to “protect[] citizens from retaliatory lawsuits that seek to 

1 This appeal was transferred from the Ninth Court of Appeals in Beaumont pursuant to an order 

issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
3

intimidate or silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 

586 (Tex. 2015) (orig. proceeding). A party seeking dismissal under the TCPA has the 

initial burden to demonstrate that the “legal action is based on or is in response to . . . the 

party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of 

association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1). If the defendant meets 

this initial burden, then the plaintiff must establish by “clear and specific evidence a prima 

facie case for each essential element of the claim in question” to avoid dismissal. Id.

§ 27.005(c). Even if the plaintiff makes this showing, the trial court must nevertheless 

dismiss the action if the defendant “establishes an affirmative defense or other grounds 

on which the [defendant] is entitled to judgment as a matter of law.” Id. § 27.005(d).

Our review of a ruling on a TCPA motion to dismiss is de novo. Entravision 

Commc’ns Corp. v. Salinas, 487 S.W.3d 276, 281 (Tex. App.—Corpus Christi–Edinburg 

2016, pet. denied).

B. TCPA Applicability

By its first issue, CLHS argues that the Davisons did not meet their burden to obtain 

dismissal under the TCPA. In particular, it complains that the Davisons “offered no 

pleadings of their own, no affidavits or verifications, and no evidence allowable under a 

[Texas Rule of Civil Procedure] 166a standard to meet their burden . . . in proving that the 

cause was based on protected speech.”

Both parties cite case law stating that a movant for dismissal under the TCPA must 

establish by “a preponderance of the evidence” that the claim at issue falls within the 

TCPA’s purview. See Howard v. Matterhorn Energy, LLC, 628 S.W.3d 319, 328 (Tex. 

App.—Texarkana 2021, no pet.) (“Under the first step, ‘[t]he party moving for dismissal 
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has the initial burden to establish by a preponderance of the evidence “that the legal 

action is based on . . . or is in response to the party’s exercise of” the right of free speech, 

the right to petition, or the right of association.’”); see also Martin v. Hutchison, No. 06-

19-00093-CV, 2020 WL 6788243, at *4 (Tex. App.—Texarkana Nov. 19, 2020, pet. 

denied) (mem. op.) (same) (citing MediaOne, L.L.C. v. Henderson, 592 S.W.3d 933, 939 

(Tex. App.—Tyler 2019, pet. denied)). However, those cases relied on an earlier version 

of TCPA § 27.005(b) which is not applicable to this case. See Howard, 628 S.W.3d at

328; see also Martin, 2020 WL 6788243, at *4. In 2019, the statute was amended to 

remove the “preponderance of the evidence” language. See Act of May 20, 2019, 86th 

Leg., R.S., ch. 378, § 3 2019 TEX. GEN. LAWS 684.

The amended version of § 27.005(b), which is applicable to this case, provides 

that the movant’s initial burden is merely to “demonstrate[]” that the claim at issue is based 

on an exercise of one of the enumerated constitutional rights. See id. §§ 11, 12 (stating 

that the amended statute applies to all suits filed on or after September 1, 2019); TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(b). And, in determining whether a legal action is 

“subject to or should be dismissed under” the TCPA, a trial court is directed to “consider

the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil 

Procedure, and supporting and opposing affidavits stating the facts on which the liability 

or defense is based.” Id. § 27.006(a). Accordingly, it was not necessary for the Davisons 

to produce admissible evidence or verified pleadings in order to satisfy their initial burden. 

Instead, the court was permitted to consider the unverified pleadings in determining 

whether the TCPA applies. See id.

As noted, the Davisons alleged in their motion that CLHS’s suit is based on their 
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exercise of the rights of free speech and of association. The statute defines “exercise of 

the right of free speech” as “a communication made in connection with a matter of public 

concern”; while “exercise of the right of association” is defined as “to join together to 

collectively express, promote, pursue, or defend common interests relating to a 

governmental proceeding or a matter of public concern.” Id. § 27.001(2), (3). A 

“communication” includes “the making or submitting of a statement or document in any 

form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 

A “matter of public concern” is defined as

a statement or activity regarding:

(A) a public official, public figure, or other person who has drawn 

substantial public attention due to the person’s official acts, fame, 

notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or

(C) a subject of concern to the public.

Id. § 27.001(7).

CLHS’s petition alleged in part that Amy Davison reported bruising on her child’s 

back to CLHS management on October 27, 2020, and in response, CLHS “self-reported” 

the allegation to the Department of Family and Protective Services (the Department). 

According to the petition, Davison later informed CLHS that the bruising had actually been 

caused by a toy that was left in the child’s car seat; CLHS relayed that information to the 

Department and the Department closed its investigation. The petition further alleged that 

video surveillance recordings from the daycare facility showed that the toy was still in the 

child’s car seat on November 6 and 10, 2020. According to CLHS, Davison sent an email 

to CLHS’s director on November 11, 2020, accusing a staff member of causing new 

bruises on the child. In the email, Davison also accused a CLHS staff member of forcefully 
6

moving the child to a changing table and grabbing the child by his arm. Davison then filed 

a report with police. According to the petition, neither the Montgomery County Sheriff’s 

Department or the Department found any wrongdoing, and the Montgomery County 

District Attorney did not file any charges. However, the staff member involved was 

required to attend a training session on infant care.

According to CLHS’s petition, in February 2021, Amy Davison posted messages 

on social media repeating the allegations against the CLHS staff member. CLHS further 

claimed that both Davisons made “several false statements” in an interview on a local 

television news program on May 13, 2021, including: (1) that the staff member 

“mishandled” and “abused” the child; (2) that the staff member “swung” the child around 

and “tossed him in the air”; and (3) that in November, the child had additional bruises 

similar to the ones he had on his back in October.

CLHS’s petition complains of at least five statements by the Davisons which are 

“communications” under the TCPA: (1) Amy’s October 27, 2020 report of bruising to 

CLHS management; (2) her November 11, 2020 email to CLHS’s director, reporting 

bruising and other physical mistreatment of the child; (3) her report of abuse to the 

Montgomery County Sheriff’s Department; (4) her social media posts; and (5) the 

Davisons’ May 13, 2021 television interview. These communications were each “made in 

connection with” the Davisons’ efforts to report and publicize what they believed to be 

mistreatment of their child occurring at CLHS’s facility. CLHS does not dispute that the 

issue of child abuse, even if allegedly committed in a privately-owned facility, is a matter 

of public concern. See id.; de la Torre v. de la Torre, 613 S.W.3d 307, 312 (Tex. App.—

Austin 2020, no pet.) (concluding that statements involving “the welfare of a child and 
7

allegations of child abuse” are matters of public concern); Cunningham v. Waymire, 612 

S.W.3d 47, 58 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (same where defendant 

made statements regarding potential abuse of his grandson); Backes v. Misko, 486 

S.W.3d 7, 18 (Tex. App.—Dallas 2015, pet. denied) (same where defendant’s statement 

“indicated a child was suffering abuse from a parent”)2; see also Bird v. W.C.W., 868 

S.W.2d 767, 772 (Tex. 1994) (“The public has a strong interest in protecting children, 

especially protecting them against physical and sexual abuse.”); Klentzman v. Brady, 456 

S.W.3d 239, 258 (Tex. App.—Houston [1st Dist.] 2014) (noting that “[c]ourts have 

routinely held that matters related to the reporting of crimes and related proceedings are 

matters of public concern”), aff’d, 515 S.W.3d 878 (Tex. 2017).

CLHS concedes that its petition “refer[s] to [the Davisons’] defamatory statements 

to harm their business,” but it claims that it did not “admit or imply that the statements 

were made for a protected purpose.” That may be true, but such an admission or 

implication is not required for a claim to be encompassed by the very broad definitions 

supplied by the TCPA.

We conclude that CLHS’s claim “is based on or is in response to” communications 

“made in connection with” “a subject of concern to the public.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.001(1), (3), (7). Accordingly, the Davisons demonstrated that the suit 

implicates their exercise of the right of free speech, and the TCPA applies. See id.

§ 27.005(b)(1)(A). We overrule CLHS’s first issue.

2 De la Torre, Cunningham, and Backes each applied an earlier version of the TCPA which defined 

“matter of public concern” to include “an issue related to . . . health or safety . . . or community wellbeing . . . .” See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 

(amended 2019). Those specific examples are not included in the current version of the statute. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.001(7). Nevertheless, we conclude that an allegation of child abuse at 

a private daycare facility is a “matter of public concern” under the current definition as well.
8

C. Evidentiary Objections

By its second issue, CLHS argues that the trial court erred in sustaining the 

Davisons’ objections to the exhibits attached to its response to the motion to dismiss. It 

asks us to remand the case to allow the trial court to consider those exhibits in determining 

whether the cause should be dismissed under the TCPA.3

Because the TCPA applies to CLHS’s suit, it had the burden to produce evidence 

supporting a prima facie case for each essential element of its claim in order to avoid 

dismissal. See id. § 27.005(c). Such evidence must be “evidence a court could consider 

under Rule 166a, Texas Rules of Civil Procedure” or “supporting and opposing affidavits 

stating the facts” on which the claim is based. Id. § 27.006(a). Pleadings will not suffice 

to satisfy this burden. Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 28 (Tex. 

App.—Houston [14th Dist.] 2020, no pet.) (concluding that “allegations in a petition are 

not alone sufficient” to meet a claimant’s burden under § 27.005(c)); see Hidalgo v. Sur. 

Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex. 1971) (“Pleadings simply outline the 

issues; they are not evidence, even for summary judgment purposes.”).

We review a trial court’s evidentiary rulings on appeal for abuse of discretion. 

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). A court abuses its 

discretion when it acts in an arbitrary or unreasonable manner, or if it acts without 

reference to guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 

3 In its brief on appeal, CLHS claims “[t]he [e]xhibits were absolute evidence required by law to 

prove clear and convincing evidence under a TCPA Motion to Dismiss, and [CLHS] did not have a fair 

chance to prove step two of the TCPA.” On March 10, 2023, we requested supplemental briefing addressing 

“whether the evidence excluded by the trial court, if considered, would have satisfied appellant’s burden 

under the [TCPA] to establish ‘by clear and specific evidence a prima facie case for each essential element 

of the claim in question.’” CLHS filed a supplemental brief in accordance with our request, and the Davisons 

filed a responsive supplemental brief.
9

2011) (plurality op.).

1. The Evidence

CLHS’s response included a declaration by Savio Saldanha which stated in 

relevant part:

2. . . . I declare under penalty of perjury that the foregoing is true and 

correct.

3. I have personal knowledge in this cause, have read the Response to 

the Motion to Dismiss, and confirm that Exhibits 1–13 [sic] are true 

and correct copies of what they claim to be, and the exhibits apply to 

the Response as they purport.

4. I am the operating partner of [CLHS], and am aware and have 

personal knowledge of all facts stated in the Response.

5. The response is true and correct and the facts stated within are as 

they are described.

6. CLHS was aware of the complaint made by Amy Davidson [sic] of 

bruises in October of 2020. It was expressed to the school by Amy 

Davison that she believed a toy was responsible for the bruising.

7. CHLS has pictures of the yellow, four prong toy in the car seat.

8. There is [sic] also pictures November 6th and November 10th from 

the breakroom at CLHS that show the toy in the car seat belonging 

to Amy Davison and used by her child in question. We were told by 

the parent that removing it would be hard because it was the child’s 

favorite toy.

9. The accusations in Amy Davison’s letter to the school after the 

alleged incident never happened. The teacher denied the aggressive 

handling or yanking the student. Further, the teacher stated that the 

child was picked up with one arm, but close to the underarm. The 

teacher denied throwing the student or the student being swung in 

any fashion.

10. CLHS alerted [the Department] immediately. [The Department] sent 

an investigator and cleared CLHS of any deficiencies.

11. We were aware that the authorities were contacted by [the 

Davisons]. No charges were filed and we understand the 

investigation to be over.
10

. . . .

13. CLHS keeps detailed records of enrollment.

14. The summer enrollment season is a large enrollment period for our 

daycare.

15. Our records indicate that the school saw approximately 30% 

decrease from summer 2020 to summer 2021.

16. The school has still struggled to recover after summer of 2021 and 

has been damaged monetarily by $300,000 to $500,000 since 

summer 2021.

17. Several parents have made it very clear that the public and other 

parents seeking a daycare are aware of the [television] interview, as 

it is one of the top internet searches when looking up the daycare, 

and those who have searched have specifically expressed that the 

article is the only reason they did not enroll.

18. This damage continues as the article is still online, and CLHS 

continues to receive damages ongoing.

19. The article and Facebook post were and are still seen by third 

parties, damaging the daycare[’]s reputation both in the past and 

ongoing.

Eleven enumerated exhibits were attached to Saldanha’s declaration: (1) an email 

chain between CLHS’s director and a Department representative on October 29, 2020; 

(2) a photograph of a toy in a car seat; (3) screenshots from a surveillance video allegedly 

showing the toy in the car seat at CLHS’s facility; (4) Amy Davison’s November 11, 2020 

email to CLHS’s director containing a “recap” of her allegations; (5) a December 23, 2020 

letter from the Department to CLHS’s director explaining that “abuse of a child was ruled 

out”; (6) social media posts by Amy Davison alleging that the child was “physically abused 

in October at [CLHS]”; (7) a February 6, 2021 email from Saldanha to Davison thanking 

her for “removing the post”; (8) a July 1, 2022 demand letter from the Davisons’ attorney 

to CLHS’s insurer offering to release the Davisons’ claims against CLHS for $150,000; 

(9) a January 14, 2021 email from the Department to CLHS stating that the allegedly 
11

abusive staff member may return to work; (10) a printout of an online news article based 

on the Davisons’ television interview; and (11) a video recording of the interview.4

The Davisons filed various objections to CLHS’s exhibits. In its final judgment, the 

trial court sustained the Davisons’ objections to all eleven exhibits on the basis of lack of 

authentication. Additionally, the trial court sustained hearsay objections to exhibits 1, 5, 

6, 7,5 and 9, and a relevance objection to exhibit 7. We address the objections in turn.

2. Authentication

“To satisfy the requirement of authenticating or identifying an item of evidence, the 

proponent must produce evidence sufficient to support a finding that the item is what the 

proponent claims it is.” TEX. R. EVID. 901(a); see TEX. R. CIV. P. 166a(f) (“Supporting and 

opposing affidavits shall be made on personal knowledge, shall set forth such facts as 

would be admissible in evidence, and shall show affirmatively that the affiant is competent 

to testify to the matters stated therein.”); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 

163 (Tex. 2018) (per curiam) (“The same evidentiary standards that apply in trials also 

control the admissibility of evidence in summary-judgment proceedings.”); see also TEX.

CIV. PRAC. & REM. CODE ANN. § 27.006(a) (providing that, in evaluating a TCPA motion to 

dismiss, the court may consider evidence which would be admissible under the summary 

judgment rule). This requirement may be satisfied with testimony, by a witness with 

knowledge, that “an item is what it is claimed to be.” TEX. R. EVID. 901(b)(1).

CLHS relied on the declaration of Saldanha, its operating partner, in order to 

authenticate its exhibits. Saldanha stated in the declaration that he had “personal 

4 Exhibit 11 is not included in the appellate record.

5 The hearsay objections to exhibits 6 and 7 were sustained only as to posts and emails which were 

not sent by Amy Davison.
12

knowledge in this case” and that the exhibits “are true and correct copies of what they 

claim to be.”6 On appeal, the Davisons argue that, out of all the exhibits offered by CLHS, 

only exhibit 7 “contained an email involving [Saldanha].” The Davisons concede that 

Saldanha stated the exhibits “are true and correct copies of what they claim to be,” but 

they argue that “[s]uch a statement is not legally sufficient” to authenticate the exhibits.

“A witness may testify to a matter only if evidence is introduced sufficient to support 

a finding that the witness has personal knowledge of the matter.” TEX. R. EVID. 602. 

“Evidence to prove personal knowledge may consist of the witness’s own testimony.” Id.

But the mere recitation that an affidavit is based on personal knowledge is inadequate; 

instead, the affidavit must “disclose the basis on which the affiant has personal knowledge 

of the facts asserted.” Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 428 

(Tex. App.—Corpus Christi–Edinburg 2016, no pet.); Southtex 66 Pipeline Co. v. Spoor, 

238 S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see Radio 

Station KSCS v. Jennings, 750 S.W.2d 760, 761–62 (Tex. 1988) (per curiam) (finding 

affidavit failed to meet the requirements of Rule 166a because it “fail[ed] to show how [the 

affiant] became familiar with the facts in the affidavit”). Statements made in the affidavit 

“need factual specificity such as place, time, and [the] exact nature of the alleged facts.”

Valenzuela v. State & Cnty. Mut. Fire Ins., 317 S.W.3d 550, 553 (Tex. App.—Houston 

[14th Dist.] 2010, no pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.

6 Saldanha’s declaration was not sworn to before an officer authorized to administer oaths. See

TEX. GOV’T CODE ANN. § 312.011(1) (“‘Affidavit’ means a statement in writing of a fact or facts signed by the 

party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the 

officer under his seal of office.”); Heirs of Del Real v. Eason, 374 S.W.3d 483, 488 (Tex. App.—Eastland 

2012, no pet.) (noting that “unauthenticated or unsworn documents do not constitute competent summary 

judgment evidence”). The Davisons did not object to the declaration on this basis, nor did they argue that 

Saldanha’s attempted authentication of the exhibits was ineffective for this reason.
13

1984)). “We look to the entire affidavit to determine whether the facts asserted therein are 

based on personal knowledge.” Rogers, 533 S.W.3d at 428.

“A person’s position or job responsibilities can peculiarly qualify him to have 

personal knowledge of facts and establish how he learned of the facts.” Southtex 66 

Pipeline Co., 238 S.W.3d at 543. In his declaration, Saldanha stated he was CLHS’s 

“operating partner,” but he did not give any indication of what his job responsibilities were 

in that capacity. In fact, there is nothing in Saldanha’s declaration, other than the mere 

recitation of his job title, establishing the basis for his personal knowledge as to the 

authenticity of any of the exhibits. Nevertheless, it is reasonable to assume that an 

“operating partner” of a company would have direct access to correspondence sent to 

and from the company and would have personal knowledge regarding whether copies of 

that correspondence are authentic.7 Accordingly, we find that Saldanha’s bare assertion 

of personal knowledge, combined with his status as operating partner of CLHS, was 

sufficient to authenticate exhibits 1, 4, 5, 7, 8, and 9, which consist entirely of documents 

and emails sent to and from CLHS representatives. However, there is nothing in 

Saldanha’s declaration establishing the basis for his personal knowledge as to exhibits 2, 

3, 6, 10, and 11. We conclude the trial court did not abuse its discretion in finding that 

Saldanha’s declaration was insufficient to authenticate those exhibits.

3. Hearsay

The Davisons also objected to exhibits 1, 5, 7, and 9 on hearsay grounds. 

“Hearsay” is a written or oral statement that “the declarant does not make while testifying 

7 It is also reasonable to assume that a person would have personal knowledge regarding the 

authenticity of emails which are sent by that person or specifically addressed to that person.
14

at the current trial or hearing” and “a party offers in evidence to prove the truth of the 

matter asserted in the statement.” TEX. R. EVID. 801(d). Hearsay is not generally 

admissible except as provided by statute or rule. TEX. R. EVID. 802. “The proponent of 

hearsay has the burden of showing that the testimony fits within an exception to the 

general rule prohibiting the admission of hearsay evidence.” Volkswagen of Am., Inc. v. 

Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).

Exhibit 1 is an email chain between CLHS’s director and the Department on 

October 28 and 29, 2020. In one email, CLHS’s director advised the Department that Amy 

Davison

came in this morning with this toy found in the car seat.[

8] She now believes 

that this may have been what caused the bruising as she measured the toy 

against the bruises on the back and they match up. In addition, when I spoke 

with her last evening she said that as she was giving his bath last night that 

he is beginning to raise his head and when he let it fall back it hit the same 

place that the bruising is on the back of his head.

The email chain also contains: (1) an email from CLHS’s director to the Department 

explaining that CLHS “made an online report” regarding Amy Davison’s allegation of 

abuse; and (2) an email from the Department to CLHS’s director acknowledging receipt 

of the online report and stating: “We have reviewed the information and determined it 

does not appear to involve a substantial risk of abuse or neglect in which [the Department]

has the authority to investigate.”

In its brief on appeal, CLHS argues that this exhibit should not have been excluded 

on hearsay grounds because it “went to show that the alleged injuries claimed by [Amy 

Davison] were investigated by [the Department] and [CLHS] was not found deficient, not 

8 Exhibit 2 is a photograph of a toy in a car seat, but as noted, Saldanha’s declaration was 

insufficient to authenticate that exhibit.
15

that [the Davisons] were liable for disparagement.” But the Department’s determination 

that CLHS’s report “does not appear to involve a substantial risk of abuse or neglect” 

comprises only part of the exhibit. Moreover, as CLHS concedes, that particular part of 

the exhibit was offered to prove that “[CLHS] was not found deficient”; i.e., it was offered 

to prove the truth of the matter asserted in the statement. See TEX. R. EVID. 801(c) 

(“‘Matter asserted’ means: (1) any matter a declarant explicitly asserts; and (2) any matter 

implied by a statement, if the probative value of the statement as offered flows from the 

declarant’s belief about the matter.”).9 The trial court did not abuse its discretion in 

sustaining the Davisons’ hearsay objection to this exhibit.

Exhibit 5 is a letter from the Department to CLHS’s director, dated December 23, 

2020, stating that CLHS was recently investigated due to allegations that “a child was 

injured by a caregiver while in care” and that, after “an investigation conducted by a 

[Department] investigator, abuse of a child was ruled out.” CLHS does not address the 

hearsay objection to this exhibit in its brief. See TEX. R. APP. P. 38.1(i). We conclude that, 

because the exhibit was offered to prove the truth of the matter asserted therein, the trial 

court did not abuse its discretion in excluding this exhibit on hearsay grounds.

Exhibit 7 consists of a chain of emails between Saldanha and Amy Davison dated 

February 6, 2021. In one email, Saldanha asked Davison to take down a Facebook post 

which “maligns our school” and threatened to pursue “legal options” if she did not. In 

another email, Saldanha thanks Davison for “taking action immediately and removing the 

9 At the hearing on the motion to dismiss, there was some discussion as to whether the exception 

to hearsay for “record[s] kept in the course of a regularly conducted business activity” applies to the exhibits.

See TEX. R. EVID. 803(6). However, there was no evidence that the exhibits were “kept in the course of a 

regularly conducted business activity” or that making the record was a regular practice of that activity.” See 

id. Accordingly, the trial court did not abuse its discretion by failing to find that this exception applies. We 

note that CLHS does not argue on appeal that this exception applies.
16

post.” Again, CLHS does not address the hearsay objection to this exhibit in its brief.10

See TEX. R. APP. P. 38.1(i). We conclude the trial court did not abuse its discretion in 

sustaining the hearsay objection to this exhibit.

Finally, exhibit 9 is another email exchange between CLHS’s director and the 

Department representative. CLHS’s director asked whether the staff member involved in 

the Davisons’ accusations is “able to return to working with all age groups and alone.” 

The Department representative replied: “Yes, but I would do training with her and other 

staff about proper ways to pick up children. And remind them that parents are always 

watching.” CLHS argues on appeal that this exhibit “was used for [i]ndependent 

[s]ignificance and the backdrop of [the Department’s] investigation, not to prove liability.” 

However, CLHS does not dispute that this exhibit was offered to prove the truth of the 

matter asserted—i.e., that the Department conducted an investigation into the staff 

member’s actions and allowed her to return to work with all age groups. See TEX. R. EVID.

801(c). We conclude the trial court did not abuse its discretion in sustaining the hearsay 

objection to this exhibit.11

4. Harm

As noted above, the trial court abused its discretion by sustaining authentication 

objections to exhibits 4 and 8. Because lack of authentication was the only objection 

raised as to these exhibits, they should have been considered by the trial court in 

10 CLHS does argue that this exhibit was relevant because “[a]greeing to retract goes to damages.” 

We do not reach the relevance issue because the hearsay objection was properly sustained.

11 CLHS did not argue at trial, and does not argue on appeal, that any of the exhibits are admissible 

under the exception to hearsay for public records. See TEX. R. EVID. 803(8)(A)(iii) (providing that in a civil 

case, a “record or statement of a public office” is admissible notwithstanding the rule against hearsay if it 

“sets out . . . factual findings from a legally authorized investigation”). Accordingly, CLHS has not met its 

burden to establish an exception to the hearsay rule in this regard. See Volkswagen of Am., Inc. v. Ramirez, 

159 S.W.3d 897, 908 n.5 (Tex. 2004).
17

determining whether CLHS met its burden under the TCPA to show “clear and specific” 

evidence supporting each essential element of its prima facie case. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.005(c). In its supplemental brief, CLHS argues that the excluded 

evidence was sufficient to serve that purpose. See TEX. R. APP. P. 44.1(a) (providing that, 

for error in a civil case to be reversible, it must have: “(1) probably caused the rendition 

of an improper judgment; or (2) probably prevented the appellant from properly presenting 

the case to the court of appeals”).

A “prima facie case,” as used in the TCPA, means “evidence that is legally 

sufficient to establish a claim as factually true if it is not countered.” S & S Emergency 

Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). It represents the “minimum 

quantity of evidence necessary to support a rational inference that the allegation of fact 

is true.” Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.] 

2014, pet. denied). In the context of the TCPA, “clear” has been interpreted to mean 

“unambiguous,” “sure,” or “free from doubt,” while “specific” has been interpreted to mean 

“explicit” or “relating to a particular named thing.” In re Lipsky, 460 S.W.3d at 590. The 

standard requires “element-by-element, claim-by-claim exactitude.” Elite Auto Body LLC 

v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d). 

We review the evidence in the light most favorable to the plaintiff. Schimmel, 438 S.W.3d 

at 855–56.

CLHS’s only claim against the Davisons is for business disparagement. “To prevail 

on a business disparagement claim, a plaintiff must establish that (1) the defendant 

published false and disparaging information about it, (2) with malice, (3) without privilege, 

(4) that resulted in special damages to the plaintiff.” Forbes Inc. v. Granada Biosciences, 
18

Inc., 124 S.W.3d 167, 170 (Tex. 2003); see Innovative Block of S. Tex., Ltd. v. Valley 

Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020) (noting that these elements “are 

more stringent than those of defamation because business disparagement protects 

against pecuniary loss”). In this context, a showing of “malice” “requires proof that the 

defendant made a statement ‘with knowledge that it was false or with reckless disregard 

of whether it was true or not.’” Forbes Inc., 124 S.W.3d at 171 (quoting Huckabee v. Time 

Warner Ent. Co., 19 S.W.3d 413, 420 (Tex. 2000)).

Here, exhibit 4 includes an email from Amy Davison “recap[ping]” the accusations 

against CLHS. Davison conceded that “a toy may have been left in [the child’s] car seat” 

and that “‘could’ have caused the bruises” on the child; however, she went on to explain 

that, according to her observation of surveillance video, CLHS staff continued to act 

“aggressive[ly]” toward the child. She said that, at one point, she saw a staff member 

“sw[i]ng [the child] around by his arm like a rag doll.” Exhibit 8, a demand letter from the 

Davisons’ counsel to CLHS, alleges that the Davisons suffered damages as a result of 

CLHS’s negligence—it does not constitute clear and specific evidence supporting any 

element of a business disparagement claim against the Davisons.

Saldanha stated in his declaration that the incidents described by Amy Davison 

“never happened.” However, there is no admissible evidence in the record—clear and 

specific or otherwise—tending to establish that Davison made her allegedly disparaging 

statements with knowledge that they were false or with reckless disregard as to their 

falsity. See id. Accordingly, the trial court’s error in sustaining the Davisons’ objections to 

exhibits 4 and 8 did not cause the rendition of an improper judgment, nor did it prevent 

CLHS from properly presenting the case on appeal. See TEX. R. APP. P. 44.1(a). CLHS’s 
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second issue is overruled for that reason.

III. CONCLUSION

The trial court’s judgment is affirmed.

DORI CONTRERAS

Chief Justice

Delivered and filed on the

6th day of July, 2023.