### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00854- CV

F rancis Cam pone and Sai T em ple of Spi ritual Healing, In c., Appellants

v. Steven K line and F ay Kline a/k/a Phaedra K line, App ellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 5-0 0436 1, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellants Fr ancis Campone and Sai Temple o f Sp ir it u a l H e a li n g , I

n c . sued appellee s Steven and Fa

y Kline for defa

mation. The Klines filed a motion to dismiss pursuant to the Texas

1 Citi zens Participation Act (“TCPA”)

. See generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Following a hea

ring , the trial cour

t signe d an orde r g ranting the motion and order ing appellants to
pay the Kli nes $10,00 0 i n trial-leve l attorney ’s fees, as well as approximately $3,000 in costs and
expenses and additional attorney ’s fee s in the event of an unsucce ssful appea l. Appellants arg ue that Steven’s motion to dismiss was untimely , that the TCPA does not appl y to their claims, that they
prese nted prim a facie evidence of each e lement of their c laims, that the Klines did not prove eac h element of their aff

irmative defe nses, and that the trial court err ed in awa rding the Klines attorney ’s

Be ca use some of the parties and witnesses share surnames, we will ref er to thos e 1 individuals by

their first name s when ne cessa ry for c larity

.fee s. As explained below, we will reve rse the trial court’s order dismiss ing appellants’ defa mation claim ag ainst Steven rela ted to statements he alleg edly made to Charlotte Michelson and awa rding attorney ’s fe es. We will otherwise a ffirm the tria l court’s orde r of dismissal.

Stand ard of Review an d App licable Law The TCPA is intended to “enc ourag e and safeg uard the constitutional rig hts of
persons to petition, speak fre ely , associate fre ely , and otherwise part i ci p ate in g overnme nt to the

max i m u m ex t en t permitted by law and, at the same time, protec t the rig hts of a person to file meritorious lawsuits for demonstrable injury .” Id. § 27.002; see Exx onMobil Pipeline Co.

v. Coleman , 5 1 2 S

. W

. 3d 895, 898 (Tex. 2017) (per curia m). The TCPA must be “construe d liberally ” to fully eff

ectua te its intent and provides for the expedited dismiss al of claims broug ht “to intimi d at e o r t o silence” a defe ndant’s exercise of his First Amendment rig hts. Coleman , 512 S.W .3d at 898 (quoting Tex. Civ. Prac. & Rem. Code § 27.011(b))

. Thus, a motion to dismiss under the TCPA must be filed within six ty day s afte r a defe ndant is serve d wi t h a “leg al action” “base d on, rela ting to, or in response to a party ’s exercise of the rig ht of fre e speec h, rig ht to petition, or rig ht of association.” Tex. Civ. Prac. & Rem. Code § 27.003(a) , (b). A trial court “may extend the time to file a motion [t o dismiss ] on a showing of g ood cause .” Id . § 27.003(b). The trial court must dismiss the leg al action if the movant shows by a preponde ranc e of the evidenc e that the claim ag ainst him is based on, rela tes to, or is in response to his exercise of those rig hts. Id. § 27.005(b); see Coleman , 512 S.W .3d at 898; In re Lipsky , 460 S.W .3d 579, 586 (Tex. 2015) (orig

. proce eding ). The “exerc ise of the rig ht of fre e s p ee ch” is define d as “a communication made in connec tion with a matter of public conce rn,” Tex. Civ. Prac. & Rem. Code

2§ 27.001(3); a “communica tion” is define d to “include[] the making or submitt ing of a statement or

document i n any form or medium, including oral, visual, written, audiovisual, or elec tronic,” id. § 27.001(1); an d a “matter of public conce rn” is define d to “include[] an issue rela ted to: (A) health or safe ty ; (B ) environmenta l, economic, or community well-be ing; (C) the g overnme nt; (D) a public o ff

i cial or public fig ure; or (E) a g ood, product, or service in the marke tplace,” id

. § 27.001(7). The “exerc ise of the rig ht of association” is d efined as “a communication betwee n individuals who join toge ther to collectively express, promote, pursue, or defe nd common interests.” Id. § 27.001(2). I f the def endant shows that the T CPA applies, the burden shifts to the plaintiff to establish “by clea

r and specific evidenc e a prima fac ie case for eac h essential element of the claim in question.” Id. § 27.005(c)

. I f the n o n m o v an t m akes such a showing , the trial court will still dismi s s t h e ac t i o n if the movant “esta blishes by a preponde ranc e of the evidenc e eac h essential element of

a valid def

ense” to the nonmovant’s claim. Id . § 27.005(d).
We beg in by asking whether the defenda n t s h o we d that the pl aintiff’s claims wer e based on, rela ted to, or in response to the movant’s exercise of its rig ht to fre e speec h, without reg ard to the truth of the alleg ed statements. In re Lipsky , 411 S.W .3d 530, 543 (Tex. A pp.—For t Worth 2013, orig

. proce eding ); Kinney v. BCG Att’y S e a r c h , I n c
. , N o . 0 3

- 1 2

- 0 0579-CV, 2014 WL 1432012,
at *5 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.). Questions rela ted to whether the alleg ed statements wer e defa matory , including an inquiry into their truth, are rese rved for the second part of our revie w, when we ask whether the plaintiff prese nted a prima fac ie case as to his claims. See Lipsky , 411 S.W .3d at 543; Kinney , 2014 WL 1432012, at *5. We apply a de novo standard to

3both steps. See Sloat v. Rathbun , 513 S.W .3d 500, 503 (Tex. App.— Au s tin 2015, pet. dism’d);

Serafine v. Blunt , 466 S.W .3d 352, 357 (Tex. App.—Austin 2015, no pet.).

F actual Summ ary Fr ancis is a spiritualist minist er and heale r. He founded and led the Temple, and his wife, Rupal Campone, was the trea surer . Membership in the Temple commu n i t y was open to
any one, and m em b ers wer e not require d to pay dues, to make donations, or to pay for healing sessions, althoug h Fr ancis periodica lly sent emails to his followers soliciting donations in exchang e for “intensives , ” al s o ca lled intensive healing sessions, and other healing sessions. The Klines beca me followers and attended healing sessions sta rting in 2008. Steven beca me very involved as

a volunteer and eventua lly donated $25,000 to help Fr ancis purcha se some land intended to be used as a f arm a nd for mee tings a

nd healing sessions.
Fa y testified in her deposition that she beg an doubting Fr ancis’s healing abilities and

e v e n tu a lly expressed her doubts to Steven in ear ly 2013. Despite Fa y ’s misgiving s, Steven cont in u e d
to have confide nce in Fr ancis “w ell into 2013.” Howeve r, in Dec ember 2013, Kar en Robison, a thera pist who is a close fr iend of the Klines, told them “that three women had c onfided to her that
Fr ancis had behaving inappropria tely with them.” Kar en said that the women had s p o k en to her independe nt of one another and “that Fr ancis had either spoken to them inappropria tely or possibly had an aff air with one or more of these women.” I n his deposition, Steven testified simil arly , say ing that Kar en Robi s o n t o l d h im that sever al women had told her “that Fr ancis made inappropria te
comments to some wom en that made them so uncomforta ble that they discontinued g oing to see them” or “had made comments imply ing they had had a sexual rela tionship with him.” He did not

4have any direc t or personal knowledg e of the t ruth of t he rumors, and he said he did not know the

names of a

ny of the wome n involved. Steven testified that shortly afte r hear ing those repor ts from Kar en, he discussed the

rumors with about nine or ten people, including Fa y , making it “ver

y clea r” that it was hear say when he share d the alleg ations. The peo ple he told wer e all curr ent or former members of the Temple 2 community who wer e also having misgiving s about Fr ancis, his abilities, and his behavior ; some of them had rec ently terminated the ir associa tion with appellants, most of the others terminate d their association shortly afte r d i s cu ssing their misgiving s with Steven. Fa y admitted that the rumors “ca me up in the conversation” with other pe o p l e i n v o l v ed with the communi ty , but she could not

reme mber who she had told. She said that she was with Steven during those conver sations and that they said that a “ver

y reliable source reve aled to Steve a nd me that Fr ancis had been inappropria te in some reg ard with three women,” alway s explaining “that this was secondha nd information.” On
Dec ember

18, 2013, Steven seve red his conne ctions with appellants via ema il.
I n ear ly 2014, Fr ancis decide d to s el l t h e far m, and on Fe bruar

y 4, 2014, Steven emailed him about that sale, asking whether Fr ancis planned to “re imburse those of us who put
money in specific ally for the land purcha se and/or improvements” and say ing that Steven “strong ly believe[d] the moral and ethical thing for y ou to do is to reimburse ” t h ose individuals. On

Steven said another woman told him that she was having a sexual rela tionship with Fr ancis, 2 but he did no t b eli eve her and “put no cre dibilit y in her comments.” He said he discussed her comments with two other members of the community , and those people “both concur red, y eah, don’t believe this—don’t believe this person. A ver y mentally confuse d individual.” 5Fe bruar

y 18, 2014, Rupal sent Steven a letter reg arding “F alse and defa matory statements made by
y ou to others re g arding Revere nd Fr ancis Campone.” Rupal said:

I t has come to the Boa

rd’s attention that false statements wer e made by y ou to others regarding Revere nd Fr ancis Campone of Sai Temple of Spiritual Hea ling, I ncorpor ated ( SAI

TEMPL E).
You are here by war

ned and notified to C E AS E AND DESI ST making false and defa matory statements re g arding Revere nd Fr ancis Campone. The statements made by y ou reg arding Revere nd Campone are false and defa matory

. I f y ou fail to discontinue this defama tion, we will have to take leg al ac tion.

She also asked Steven to stop using the Temple’s email and contac t list and to r eturn the Temple’s key s and credit car d. Steven responded by email on Marc h 1, 2014, stating, “ The stateme nt that I made false and defa

matory statements ag ainst Fr ancis is incorre ct. Appar ently the con t en t of discussions I had with a very few people was n o t p re ci sely , acc urate ly and completely communicated.” He stated that he would return the key s and cre dit car d and that he would not use
t h e T em p l e’ s email list in the future. Howeve r, he said, “Obviously I have established persona l rela tionships wit h some of these people a nd will continue to communicate with them as I see f it.”
Fr ancis and his wife moved o u t of state in October 2014, but he trave led back to Texas to conduct healing sessions “as often as I was able.” I n Fe bruar y 2015, he returne d to Texas for a healing session with Charlotte Michelson, at which time, he testified, Michelson told him:

she had stopped coming to the Sai Temple and stopped asking me for healing beca use she had been told by Steven Kline in April of 2014 that I wa s having an aff air with at least one marrie d woman who attended the Sai Temple and that my wife was a devil worshiper

. She said that she was afr aid to come to the Sai Temple

6or to my healing sessions any more beca

use of these statements by Mr. Kline. I had never hear d of these sta tements by Mr. Kline to Ms. Michelson bef ore.

Michelson testified in her deposition that in late April 2014, she ra n into St even, w ho told her:

that Fr ancis wa s a fa

ke, he ne ver he aled a

ny one. He said that he had g iven Fr ancis a l o t o f m o n ey an d he wanted it back. He said that Fr ancis

. . . had an aff air with Tere sa who lived up at the far m in a trailer with her husband. He s ai d t h at Rupal, Fr ancis’s wife, was a devil worshiper and she— an d i f I went to Fr ancis, he would drain a ll the ener g y

awa y from me a

nd somehow g ive it to Rupal or something.

Michelson was shocked by Steven’s alleg ations, and she called two other people associate d with the Temple. One of them “b as i ca l l y t o l d me the same things,” and the other “said he didn’t know
any thing, all he knew was that nobody believed in Fr ancis any more.” A third person who had been associate d with the g roup called Michelson and “said the same things that Steve Kline had told me and that she be lieved the stuff , and [Michelson] was shocked ag ain, shocke d beca use she wa s one of Franc is’s rea l big fans.” Michelson s aid s he did not see Fra n ci s fo r healing betwee n April and October 2014 beca

use “I was a fra id to go ba ck af

ter wha t Mr. Kline told me.”
Fr ancis sued Steven for defa mation on September 30, 2015. The Temple was added as a pla intiff in Ma

rch 2016, and appellants added Fa y as a defe ndant in A

ug ust 2016. Appellants alleg ed that Steven had defa med Fr ancis in his conver sation with Mich els on and that Fa y made defa matory statements about Fr ancis to There sa Chai “and probably others.” Appellants alleg ed that the statements wer e defa

matory per se and had cause d the Temple to lose followers, volunteers, and donations. The Klines filed a motion to dismiss under the TCPA on September 23, 2016, which the

7trial court g rante d on November 22, awa rding the Kl i n es $10,000 in attorney ’s fee s, costs and expenses amounting to slig htly more than $3,000, a

nd conditional appellate attorney ’s fe es. Appellants complain that Steven’s motion was untimely under the TCPA and that he did not show g ood cause for extending the deadline to file; t h at the TCPA does not apply to appellants’ claim ag ainst the Klines; that appellants put forth prima fac ie evidenc e for eac h element of t heir claim; that the Kli nes di d not establish their affirmative defenses ; an d that the court err ed in its award of

attorney ’s fe es. We will consider the timeliness of Steven’ s motion first.

Time liness of

Steven’s M otion to Dism iss On September 30, 2015, Fr ancis filed an orig inal petition naming Steven as the sole defe ndant and asser

ting a claim for defa

mation. The full alleg ations rela ted to the fac ts and asser ted 3

cause of ac tion read a s follows:

Kline made a series of defa matory statements conce rning Campone, a private P laintiff. Campone wrote to Kline asking him to stop making such statements

. Nevertheless, Kline continued making defa matory statements about Cam p o n e. Specifica lly , Kline ra

n into Char lotte Mic helson at a Sprint store in the Austin a rea in J anuar y 2015. Kline asked Michelson to step outside so he could tell her what was g oing on . He then proce eded to make defa matory statements about Campone that wer e fa lse.
T h e s t at em ents complained of purported to be statements of fac t. The statements wer e unambig uous. Wit h reg ard to the falsity of t h e s t at em ents, Kline was either acting with actual malice , was ne g lige nt, or is liable without reg ard to fa ult.

Steven was serve d with the orig inal petition on October 2015 and filed an answe r in November 2015.

The orig inal petition named only Fr ancis as a plaintiff, but in Marc h 20 1 6, he filed an 3 amende d petition, adding the Temple a s a plaintiff a nd making the same a lleg ations of fa ct. 8On Aug ust 9, 2016, appellants filed a seco n d amende d petition, adding Fa y as a defe ndant. The f

ull recitation of “ Fa cts and Cause of Ac tion” rea ds as follows:

Steven Kline made a series of defa matory statements conce rning Campone, a private Plain t i ff

. C ampone wrote to Steven Kline asking him to stop making such s t atements. Neve rtheless, Steven Kline continued making defa matory statemen t s about Campone. Specifica lly , Steven Kline ran into Charlotte Michelson at a Sprint store in the Austin are a in J anuar y 2015. S t even Kline asked Michelson to step outside so he could tell her what was g oing on. He then proce eded to make defa m at o ry s tatements about Campone that wer e false. Steven Kline also made defa matory statements to others conce rning Ca mp o n e , as more particula

rly descr ibed in his deposition. Phaedra Kline made defa matory statements to There s a Chai and probably others. Those stateme nts are de scribed in Ms. Chai’s de position. The statements complained of p u rp o rt ed to be statements of fac t. The statements wer e unambig uous. Wit h reg ard to the falsity of the statements, Steven Kline and Phaedra Kline wer e either acting with actua l malice, wer e neg lige nt, or are liable without reg ard to fa

ult. The stateme nts were defa matory per se . There fore , damag es ar e pre sumed. Plaintiff Sai Temple has been harme d by the defa matory statements made by Steven Kline and Phae dra K line about its leader , Plaintiff Campone.

On September 23, 2016, the Klin es fi l ed a j oint motion to dismiss

. The Klines acknow ledg ed that the motion was filed more than six ty day s afte r Steven was serve d with the orig inal petition and asked the trial court to g rant a n extension of tim e, asse rting :

the onl y alleg ation contained i n Plaintiff’s Orig inal Petition was alleg edly made in J anuar y 2015, but has now been shown by the witness’s own testimony to have been made in Apr il 2014, if made at all. As such, that cla im would have bee n barr ed by the one-y ear statute of limit ations. I t was not until the filing of Plaintiffs’ Se cond Amended Orig inal Petition that additional claims wer e made ag ainst Mr. Kline. As set forth above, this Motion is b roug ht within 60 day s of the service of Plaintiffs’

9Second Amended Orig inal Petition and these additional claims. Considering that

Plaintiff’s [si c] orig inal alleg ation was, and still is, falsely dated to avoid limit ations, that the new cl aim s ag ainst Mr. Kli ne were added less than 60 day s ag o, that these new claims still fail to co n t ai n any specific ity , and that Mrs. Kline has just been added to the lawsuit and has timely filed this Motion, g ood cause exis ts to extend Mr. Kline’s tim e t o fi l e this Motion. Acc ording ly , Mr. Kline respe ctfully reque sts the Court gr ant him an extension and acc ept this Motion as ti mely

.
The motion we nt on to sta te that the alleg ed statements by Steven wer e made in c onnection with a matter of public c oncer

n and to asser

t limi tations, truth, and qualified privileg e as de fense s. Appellants filed a third amende d petition on October 11, 2016, ad ding alleg ations explaining how Campone lear ned of the Klines’ rema

rks in Fe bruar

y 2015 and in Aug ust 2016 and

asser ting that the discovery rule should apply to toll the running of limit ations. They also provided more detail about t he allege dly defa matory statements m ade by Fa y . Appellants responde d to the Klines’ motion, filing a

n amende d response the day befor e the hear ing. I n the amende d response , appellants arg ued that the second amende d petition did not asser t any new claims ag ainst Steven and thus did not restar

t the six ty -d ay p er i o d

. They contende d that dismiss al afte r the suit had been pending for a y ear would not serve the intent of the TCPA—to provide for d i s m i ssal ear ly in the litigation—noting discovery had g otten well underw ay . Appellants also asser ted that Steven had not shown g ood cause for an extension of the TCPA deadline. As for Steven’s asser tion that he rec ently lear ned that he could asser

t limitations as a def

ense, a ppellants arg ued that Steven had at the same time lear ned that the discovery rule would tol l l i m i t ations and, there fore , that he should not be
g rante d additional time on that basis, stating, “A limit ations defe nse that is defe ated by application of the discove ry

rule doe s not provide g ood cause [for] m issing the 60- day deadline.”

10At the hear ing, the parties touched on the timeliness of Steven’s motion, but most of

the discussion and arg ument was rela ted to the timeliness of additional aff idavits filed by the Klines

a wee k befor e the hear ing, appellants’ objections to those aff idavits, and the time fra me in which the trial court was require d to r ule on the motion to dismiss

. At the conclusion of the hear ing, the trial
court stated that it was taking the matter under advisement. About two wee ks afte r the hear ing, the trial court signe d its order g ranting the Klines’ motion to dismiss

. I t did not make finding s, ruling s,

or other statements rela ted to Steven’s reque st for additional time to file his motion. See Tex. Civ. Prac. & Rem. Code § 27.003(b) ( trial court may extend tim e for

filing TCPA motion).
I n their first issue, appellants contend that the motion to dismiss , filed on September 23, 2016, was untimely as to Steven. Howeve r, in t h ei r s ec ond and third amende d petitions, appellants added new fac tual alleg ations about instances of alleg ed defa mation, aside from his statem en t s to Charlotte M ichelson. The deadline for filing a TCPA motion may be reset i f an amende d petition asser

ts claims “base d upon new fac tual alleg ations,” see Jordan v. Hall , 510 S.W .3d 194, 198 (Tex. A pp.—Houston [1st Dist.] 2016, no pet.). The second, and then third, amende d petitions a lleg ed new and distinct injuries, including adding Fa y as a defe ndant, and thus the m otion was ti mely as t o all of app el l an t s ’ d ef amation claims other than those g rounded in the alleg ed statements made to Michelson. See Stephan v. Baylor Med. Ctr. , 20 S.W .3d 880, 888 (Tex. App.—Dallas 2000, pet. denied) (ea ch republica tion of defa matory sta

tement g ener ally inflicts “new and distinct injury ” and thus c an be ba sis of new a nd separ ate c laim). As for the app el l ants ’ alleg ations rela ted to Steven’s statements to M ichelson—spec ifically , the new asser tion that the conver sation betwee n Steven and Michelson

11occur

red in 2014, not 2015— we conclude that chang ing the date does not amount to asser ting a new claim. Appellants mere ly clar ified the date of the alleg ed conver sation, but all of the other rele vant details, including the very specific al l egations of wher e and how the conver sation took place ,

rema ined essentially the same. Steven claims that the conver sation never took place at all; he does
not arg ue that he was somehow misled or confuse d beca use he had not spoken to Michelson in 2015 but had in 2014. We there fore conclude that Steven’s motion was untimely as t o ap p el l an ts’ defa mation claim rela ted to the Michelson conve rsation.

Steven also asser

ts that he showed g ood cause for extendi n g the time to file his motion as to the Michelson alleg ations. The g ranting of an ex tension of time under section 27.003(b) is left to the trial court’s discretion. See Morin v. Law Office of Kleinhans Gruber, PLLC , No. 03-15-00174- CV, 2015 WL 4999045, at *3 (Tex. App.—Austin Aug

. 21, 2015, no pet.) (mem. op.). Howeve r, the trial court did not make statements rela ted to Steven’s reque st for an extension of t ime for good cause and the Kli nes di d not obtain any expli cit ruling on t h at reque st. See In re Estate of Check

, 438 S.W .3d 829, 836 (Tex. App.—San Antonio 2014, no pet.). Even if we assume that by g ranting the TCPA motion, the trial court impliedly g rante d Steven’s reque st, see Schimme l

v. McG regor , 438 S.W .3d 847, 855 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (trial court’s

s t at em ent that TCPA motion was timely filed “impliedly ruled that there was g ood cause for defe ndant’s failure to file his motion on time as require d under the TCPA”), we ca n n o t hold that Steven showed g ood cause as to why he d i d n o t seek dismiss al under the TCPA when he was orig inally sued.

12As noted above, appellan t s ’ alleg ations about the circ umstances surrounding the

conver sation rema ined unchang ed other than their clar ify ing that the conver sation occur red in 2014,
not 2015. Steven denied that he had ev er h ad s uch a conver sation with Michelson as alleg ed in either petition. There was no explanation of why Steven could n o t h av e s oug ht dismiss al within six ty day s of orig inally being sued. Under these particula r fa ct s , we ag ree with appellants that Steven did not s h o w good cause for extending the TCPA deadline—f rom six ty day s to one full
y ear —as to the defa

mation claim g rounded on the Michelson conver sation. See Jordan , 510 S.W .3d at 198-99 (TCPA deadline is not rese t when amended petition does not add new claims or fa ctual alleg ations); Morin , 2015 WL 4999045, at *3 (“ I n assessing ‘g ood cause ’ in other contexts, the
supreme court held that ‘[g]ood cause is established by showing that the failure involved was an

acc ident or mistake, not intentional or the result of consciou s i n differ ence .’” (quoting W heele r

v. Gr een , 157 S.W .3d 439, 442 (Tex. 2005))) ; Check , 438 S.W .3d at 836-37 (re iterating T C P A’ s
purpose of expedited dismiss al of unmeritorious s u i t s re l ated to exercise of fre e speec h). We

overr ule their first issue as to appellants’ claims ag ains t Fa y and their claims ag ainst Steven not arising out of the alleg ed conver sation with Michelson. We sustain appellants’ first issue as it rela tes
to their claim for defa

mation g rounded in the Michelson conver sation. Thus, the following analy sis only conce rns appe llants’ claims that do not relate to the Michelson conve rsation.

Does the TCP A Apply?
I n their second issue, appellants urg e first that the TCPA does not appl y t o t h ei r defa mation claims; second, that they prese nted prima fac ie evidenc e of eac h element of their claims; and third, that the Klines did not establish eac h element of their aff irmative defe nses. We beg in by

13asking whether the Klines showed th at ap p el l an t s ’ claims wer e based on, rela ted to, or wer e in

response to the Klines’ exercise of their rig ht to f ree speec h, without r eg ard to w hether appellants’ alleg ations are true. See Lipsky , 411 S.W .3d at 543; Kinney , 2014 WL 1432012, at *5.

Appellants first arg ue that beca use the Klines denied the alleg ations, they cannot seek dismiss al under the TCPA. Howeve r, the supreme court has held that whether the TCPA applies is evalua ted based on the claims made in the plaintiff’s pleading s and is not aff ecte d by a defe ndant’s denial of those a lleg ations. Hersh v. Tatum , 526 S.W .3d 462, 466-67 (Te x . 2017).

Fur ther, the fac t that the Klines wer e ending their aff iliation with appellants at approximately the sam e t ime they alleg edly made their statements does not mean, as arg ued by appell an t s , t hat t he st atements cannot be considered related to or based on the Kli nes’ ex erc ise of their rig ht of association. The Klines wer e m em bers of the spiritual community for a number of
y ear s, as wer e the people with whom they al leg edly share d their statement, and the statements involved discussing the behavior of the leade r of the community

. The Klines s h owed that appellants’ claim was based on their exercise of the rig ht o f as s o ciation. See Tex. Civ. Prac. & Rem. Code § 27.001(2) (def

i n i n g “r ight of association” as communication betwee n individuals “who join toge ther to collectively express, promote, pursue, or defe nd common interests”) ; see, e.g. , Fawcett

v. Rogers , 492 S.W .3d 18, 23-24 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (par ties to lawsuit

we re all members of same Masonic lodge ); Combined Law Enf’t Ass’ns of Tex. v. Sheffield , No. 03-13-00105- CV, 2 0 1 4 WL 4 1 1 6 7 2 , at *5 (Tex. App.—Austin J an. 31, 2014, pet. denied) (mem. op.) (def amation claim based on alleg ations of misconduct during and immediatel y fo l lowing plaintiff’s employ

ment with association of members who soug ht “to collectively express, promote,

14or defe nd the common i n t er est s of police office rs”; claim rela ted to members’ exercise of rig ht

of assoc iation).

Appellants also contend that the Klines did not show that the alleg ed statements wer e exercises of their rig ht of fre e speec h beca use the statements we re not about matters of public

conce rn. Howeve r, courts have noted the expansive scope of the TCPA, with the supreme cou rt stating that “[t] he TCPA casts a wide net” and that “[a]lm ost ever y imag inable form of communication, in any medium, is cover ed

. ” Adams v. Starside Custom Builders, LLC , 547 S.W .3d 890, 894 (Tex. 2018); see Cavin v. Abbott , 545 S.W .3d 47, 60-65 (Tex. App.—Austin 2017, no pet.) (discussing case s showing breadth of TCPA); see also Craig v. Tejas Promotions, LLC , __ S.W .3d

_

_ , No. 03-16-00611- CV, 2018 WL 2050213, at *5 (Tex. App.—Austin May 3, 2018, no pet. h.) (noting TCPA’s “broa d terms”)

. The TCPA has been h el d t o ap p l y t o defa mation case s arising out of: an email and a blog post allegin g t h at a develope r had not paid

cre ditors, commingle d funds, eng ag ed in contra ct fra ud, and failed to disc lose a felony conviction, Adams , 547 S.W .3d at 894-96; alleg ations that an employ ee had not proper ly g aug ed a storag e tank, Coleman , 512 S.W .3d at 897-98; alleg ations that a cer tified reg istered nurse anesthe tist held himself
out as a doctor, endang ere d patients, and sex ually hara ssed employ ees, Lippencott v. W hisenhunt , 462 S.W .3d 507, 508-09 (Tex. 2015) (per curia m); alleg ations of mental illness and spousal abuse, Cavin , 545 S.W .3d at 53, 63-64; alleg ations that a pare nt was abusive toward a littl e leag ue umpire, Bilbrey v. W

illiams , No. 02-13-00332- CV, 2015 WL 1120921, at *8-9 (Tex. App.—For t Wo r th Mar. 12, 2015, no pet.) (mem. op.); and a forme r em p l o y ee’ s online revie w of his former employ er, Kinney , 2014 WL 1432012, at *1, 5. Appellants a lleg ed that the Klines had said that Fr ancis was

15conducting himself improperly in his role as a reli gi o u s l eade r, had made multipl e women fee l

uncomforta

ble, was taking fi n ancial advanta g e of members of the spiritual community , and was falsely holding himself out as a heale r when he had no such abilities. Those alleg ations can b e viewed as touching on issues of public hea lth (whether Fr ancis wa s improperly claiming he could heal phy sical ailments) and public safe t y (whe ther he made women fee l unsafe ), economic well-be ing ( whether

he wa s improperly reta ining donated funds), c ommunity well-be ing ( whether the Temple and Fr ancis as its lea der wer e behaving proper ly ), and potentially even a service in the marke tplace (the validity of Fr ancis’s claims of being able to heal ailments). See Tex. Civ. Prac. &
Rem. Code § 27.001(7). The trial court would not have err ed in concluding that the Klines’ alleg ed statements about F ranc is’s behavior w ere made in conne ction with matters of public c oncer n. We overrule appellants’ a rg ument that the TCPA does not apply to their claims.

Was Dism issal Pr oper Under t he TCP A? Be cause the TCPA applies, we now consider the other issues raised by appella nts. As we will explain below, Steven established the aff irmative defe nse of limit ations, and both he and
Fa y established the defe nse of qualified privileg e. There fore , assuming wi t h o ut deciding that appellants car

ried their burden of establishing by clea r and specific evidenc e a prima fac ie case for

eac h essential element of their defa mation claims, we will aff irm the trial court’s order of dismiss al. See id. § 27.005(d) (cour

t shall dismiss leg al action if movant establishes eac h essential element of valid defe nse by

preponde ranc e of e vidence ).
I n their answe r, the Klines asser ted that appellants’ claims ag ainst them wer e barr ed by limit ations, and in their TCPA motion, they asser ted spec ifically

that the claims ag ainst Steven

16wer e barr ed by limit ations. Appellants do not contest that Steven’s alleg ed defa matory statements

wer e made more than a y ear befor e they filed suit. See id. § 16.002(a) (one- y ear limit ations period for defa mation suit); Deav er v. Desai , 483 S.W .3d 668, 674 (Tex. App.—Houston [14t h Dist.] 2015,

no pet.) (“F or defa

mation claims, there is a one-y ear statute of limit ations, which beg ins to run from the day the cause of action acc rues.” ). I nstead, they asser t that the running of limit ations was tolled under the discovery

rule. The discovery rule a

pplies to a defa

mation c laim w hen the defa matory statement is “inher ently undiscovera

ble or not a matter of public knowledg e.” Velocity Databank, Inc. v. Shell Offshore, Inc. , 456 S.W .3d 605, 609 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ; Deav er , 4 8 3 S.W .3d at 674-75. “To be ‘inhere ntly undiscovera ble,’ an injury need not be impossibl e t o discover, but it must be, by nature , unlikely to be discovere d within the presc ribed limit ations period despite due dilig ence .” Velocity D atabank , 456 S.W .3d at 609 (citing S.V. v. R.V. , 933 S.W .2d 1,
7 (Tex. 1996)). I f the discovery rule is deeme d to apply , limit ations beg in to run when the plaintiff lear ns or should have lear

ned of the defa

matory s t at ement. Id

. (citing Childs v. Hausseck er , 974 S.W .2d 31, 37 (Tex. 1998)). “The discovery rule is a limit ed exception to strict compliance with the statute of limit ations.” Computer Assocs. Int’l, Inc. v. Altai, Inc. , 918 S.W .2d 453, 457 (Tex. 1996); see Velocity Databank , 456 S.W .3d at 609 (“The statute of limit ations is applied strictly and the discovery rule is a v er y l i m i ted exception.”). “The inhere ntly undiscovera ble require ment is strictly construed.” Roberts v. Davis , No. 06-07-00024- CV, 2 0 0 7 W L 3 194813, at *2 (Tex. App.—Texarkana

Nov. 1, 2007, pet. denie d) (mem. op.)

.

17The Klines both a dmitted to passing along Robison’s hear say alleg ations to se vera l

people in late 2013. Rupal wrote Steven a cea se-a nd-desist letter in ear ly Fe bruar y 2014, instructing him to stop defa

ming Fr ancis and threa tening to take leg al action if he persisted. Steven testified in his deposition that Rupal’s ce ase- and-de sist letter ref err ed to hi s discussing the rumors wit h other members or former members of the community

. He also testified t hat he was ref err ing to those rumors i n his Dece mber 2013 e mail terminating his association with appellants, in which he said,
“I have seen and hear d instances of less than unconditionally loving and truthful words and actions.
I have hear d other instances of this from others, including descr iptions of sexual indiscretions. This is hear say , but I trust the source s of the most serious matters.” Chai testified in her deposition, taken Aug ust 8, 2016, that Fa

y told her Fr ancis had had “inap p ro p riate rela tionships with some of the people he was healing .” Chai did not reme mber when Fa y told her about the rumors but testified that it was not within the last y ear ; appellants immediately added F ay

as a de fenda

nt. For his part, Fr ancis’s a ffidavit set out a chronolog y of t he Temple and the Klines’ invol v em en t wi t h it, including Steven’s Fe bruar y 2014 letter asking to be reimburse d for his donation. I n the par ag raph immediate ly following , Fr ancis a verr ed:

I beg an t o h ear that Steven Kline was telling people that I had been having aff airs with women who had attended the Sai Temple. S u ch statements wer e false and Steven Kline could h ave confirme d that they wer e false by asking the women he claimed wer e involved. I also beca me awa re that persons who had been involved in the Temple’ s work and in he aling sessions were disappea ring

. On Fe bruar

y 18, 2014, my wife, who was Trea surer of the Sai Temple, sent a “ce ase and desist” letter, return receipt requested, to Steven Kli ne demanding that he st op making false statements about me, that he stop using the Sai Temple email list, and that he return key s to the Temple proper ty and a Sai T emple cre dit c ard that he still had. A copy of that Fe brua ry 1 8 , 2 0 14, letter is attache d as Ex hibit D to this

18Affida vit. My wife and I did not take any further action reg arding the repor ts that we had hea rd.

As stated ear lier, the discovery rule only opera tes to toll limit ations when the defa mation is “inher ently undiscovera ble or not a matter of public knowledg e.” Velocity Databank , 456 S.W .3d at 609. The injury need not be impossible to discover, but by nature it must be unlikely
to be dis cover ed withi n the l imitations period despite the pl aintiff’s due diligenc e. Id

. Fur ther, if the discovery rule does apply , limit ations will beg in to run when the plaintiff lear ns or should have l earned of the defa

mation. Id. We will strictly construe the discovery rule and its “inhe re n t l y undiscovera

ble” require ment. See Altai , 918 S.W .2d at 457; Velocity Databank , 456 S.W .3d at 609; Roberts , 2007 WL 3194813, at *2.

“Onc e a claimant lear

ns of a wrong ful injury , the statute of limit ations beg ins to run

even if the claimant does not y et know the specific cause of the injury ; the party responsible for it;
t h e full extent of it; or the chanc es of avoiding it.” Exx on Corp. v. Emerald Oil & Gas Co. , 348 S.W .3d 194, 207 (Tex. 2011) (cle aned up) . “Af ter be ing put on notice of t he allege d harm or injury -ca using actions, the claimant must exercise rea sonable diligenc e to investiga te the suspected harm a nd file suit, if at all, within the limi tations period.” Id

. The evidenc e prese nted by the parties, including Fr ancis’s own aff idavit, establishes that Fr an ci s knew that Steven had made statements about allege d sexual misconduct on Fr ancis’s part befor e Rupal sent Steven the cea se-a nd-desist letter on Fe bruar y 18, 2014. Fr ancis specific ally

aver red that h e and Rupal “did not take any further action” reg arding that knowledg e. He did not file suit until late September 2015, seven months afte r he lear ned of Steven’s alleg ed conver sation

19with Mic helson and more than eig hteen months a fter he lear ned of Steven’s alleg ed defa mation in the Temple community

. The fact that Fr ancis learned in ear ly 2015 that Steven had a lso defame d him to Michelson does not mean that limit ations was tolled until that discovery

. I nstead, limit ations beg an to run sometime betwe en De cembe r 2013 and Fe bruar y 18, 2014, which wa s the latest date

o n wh i ch appellants knew or sus pecte d that Steven was defa ming them to some deg ree . Be cau s e Campone’s aff

idavit establishes that appellants had actua l notice of the potential harm as of that date, appellants had one y ear

to investiga te the extent of the def amation and f

ile suit. They

failed to do

so and there fore cannot rely on the discovery rule to tol l t h e ru nning of limit ations. See id. There fore , Steven showed by a prepondera

nce of the evidence that appellants’ claims ag ainst him (other tha n the claim re lated to Michelson) a re time-ba

rre d.
Fur ther, the Klines both contende d that they had established the defe nse of qualified privileg e beca

use their statements wer e made without malice, conce rned Fr ancis’s actions as leade r of the Te mple community , and we re c ommunicated only to other member s of the community

. A “qualifie d privileg e exis ts u n d e r th e c o mmon law when a statement is made in g ood faith and the author, rec ipient, a third person, or one of their family members has an interest that is sufficie ntly aff

ecte d by the statement. ” N ee l y v. W ilson , 418 S.W .3d 52, 62 (Tex. 2013). Such a privileg e “re mains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications rela te.” Randa l l ’s F o o d Mkts., Inc. v. Johnson , 891 S.W .2d 640, 646 (Tex. 1995). The privileg e does not apply “if the person claiming it does not
act for the purpose of protec ting the co m m o n i n t ere st.” Grant v. Stop-N-Go Mkt. of Tex., Inc. , 994 S.W .2d 867, 874 (Tex. App.—Houston [1s t Dist.] 1999, no pet.).

20A qu al i fi ed privileg e justifies a communication made without actua l malice, Dun

& Bradstreet, Inc. v. O’Neil , 456 S.W .2d 89 6 , 8 9 9 (Tex. 1970), which is not presumed, Dixon

v. Southwestern Bell Tel. Co. , 607 S.W .2d 240, 242 (Tex. 1980). I nstead, the party seeking to defe at the asser tion of a qualified privileg e must prove that the speake r knew the statement was false

or acte d with rec kless disreg ard for its truth. F o r b es Inc. v. Granada Bioscience s, Inc. , 124 S.W .3d 167, 171 (Tex. 2003). “Rec kless disreg ard is a s u b j ective standard, focusing on the defe ndant’s state of mind,” and mere neg lige nce does not sa tisfy that standard. Id. I nstead, “ther e
must be sufficie nt evidenc e to find that the speake r enter tained ‘ser ious doubts’ as to the truth of his statements.” Gillum v. Republic Health Corp. , 778 S.W .2d 558, 572 (Tex. App.—Dallas 1989, no writ) (citing St. Amant v. Thompson , 390 U.S. 727, 731 (1968)). Ma lice “c annot be infe rre d from the char acte r of the alleg edly defa matory statement without other evidenc e to prove it.” Id

. at 572-73 (citing Fitzjarral d v. Panhandle Publ’ g Co. , 228 S.W .2d 499, 505 (Tex. 1950)). Appellants arg ue that the Klines cannot invoke qualified privileg e beca use they had alre ady left the Temple community

. Howeve r, the Temple does not have any particula r membership require ments. Fur

ther, the rec ord ref

lects that the Klines passed Robison’s alleg ations along to other members who had been having doubts about appellants, some of whom had alre ady decide d to leave and others who decide d to leave soon afte r the Klines did. They passed along the alleg ations at the time they themselves were leaving or had just left t he Temple. The fa ct that the Kli nes and those other individuals were le aving or wa vering about their a lleg iance to a ppellants does not me an that they cannot be considere d to have a common interest in Fr ancis’s behavior toward members of th e community

. See Honey cutt v. Forest Cove Prop. Owners’ Ass’n , No. 14-98-01255- CV,

212001 WL 520959, at *4 -6 (Tex. App.—Houston [14t h Dist.] May 17, 2001, no pet.) (mem. op.)

(g roup of neig hbors wrote letter to homeowner s’ association, copy ing school board , a s k in g f or action
to curb parties t h ro wn b y Honey cutt, which they alleg ed resulted in fig hting, profa nity , public lewdness, and driving while intox icated; defe ndants wer e entitled to claim qualified p ri v i l ege beca use defe ndants did not enter tain serious doubts as to truth of statements and school board “had

an interest in t h e i n formation as it rela ted to the safe ty and health of their students”);
W eisberg v. London , No. 13-02-00659- CV, 2004 WL 1932748, at *8 (Tex. A pp.—Corpus Christi Aug

. 31, 2004, no pet.) (m em . op.) (statements by one temple to another about whether plaintiffs

wer e in g ood standing wer e prote cted by qualified intere st beca

use newtemple “ha d an intere st in th e i n fo rm ation”); Hanssen v. Our Rede eme r Lutheran Church , 938 S.W .2d. 85, 92-93 (Tex. App.—Dallas 1996, writ den i ed ) (church’s alleg ations of misappropriation wer e protec ted by qualified immunit y beca

use members had common interest in use of donations); cf. Levine v. Steve Scharn Custom Homes, I nc. , 448 S.W .3d 637, 648-49 (Te x . App.—Houston [1st Dist.] 2004, pet. denied) (bec ause there was “no proof that these statements wer e nece ssary to protec t the interest of Hettig or any one else in the neig hborhood,” court proper ly denied instruction on qualified privileg e).

The rec ord does not es t ab l i s h that the Klines and the rec ipients of their

co m m u n i cations cannot be considere d at t he ti me t o have a common interest. I nstead, the Kl i n es established that they , the people to whom they spoke, a third person, or one of their family members had an interest that was sufficie ntly aff ecte d by the statement. See Neely , 418 S.W .3d at 62. Thus, 4

Appellants asser

t tha t at the time Fa

y spoke to Chai, Chai was no longe r a member of the 4 Temple community and had moved to a differ ent state. Howeve r, they have not pointed to evidenc e showing that. I nstead, Fa y indicated that she spoke of the rumors in late 2013, and an ex hibit

22unless appellants prese nted evidenc e raising a fac t issue as to whether the Klines acte d with a ctual

malice, the r ecor d supports a conc lusion that the Klines were protec ted by qualified immunity

. I n his de position, Steven testified that befor e hear ing the alleg ations from Robison, he had beg un talking to other members of t he Te mple who “alrea dy had a lot of m isgiving s about
Fr ancis that had built up over time like me.” He said that hear ing the alleg ations from Robison, “a

source that I trusted,” “wa s a prec ipitating event for me. Yo u k n o w, i t ’s —that I sat there and considere d it for a couple of day s and said, This is worse than I thought it was. I must g et awa y from thi s immediately .” Asked why he passed Robison’s alleg ations along to other members of the Temple c ommunity , Steven said:

I said, y ou know, i t ’s h ea rs ay , but y ou—y ou need to know this beca use I trust the source . I didn’t fee l there was any way she would make up—make this stuff up. . . . And I k n ew those that wer e still g oing to see Fr ancis alre ady had a lot of misgiving s. . . . I

—and i t ’s p ar tly out of coming to a rea liz ation that things wer e worse than I

—I knew there wer e a lot of things wrong, b u t i t was coming to a rea liz ation that, Oh, my

g osh, it’s—I think it’s worse than wha t I thought it was.

I n her de position, Fay

said:
Any statement t hat I h av e m ad e about Fr ancis or Sai Temple have been truthful. I never intended to hurt Fr ancis or Sai Temple, but I did fee l an obliga tion to let people know about my experience s with Fr ancis and the S ai T em ple community

. Kar en Robison is a g ood friend of mine. She told me she had encounte red sever al women

consisting of minutes from a September 25, 2013 Temple board meeting states that “The resa and J on informed us that they wer e relocating to I owa . . . within the nex t couple of wee ks.” I t als o noted Chai’s “consta

nt negat i v i t y ” and “par anoid and constant criticism of ever y thing we wer e doing.” Minutes from a J anuar

y 8, 2014 meeting indicate that Chai was still in contac t with other members of the Temple community

. The evidenc e thus indicates that Chai was still involved with members to some deg ree throug h the end of 2013 and possibly

into early

2014. 23who alleg ed that Fr an ci s C am pone had acte d inappropria tely towards them. I

consider Kar en Robison a trustworthy and reliable person, so I had no rea son not to believe he r.

For mer Temple member Eliz abeth Chang testified in her deposition that shortly afte r the Klines left t h e T em p le, Fr ancis and his wife told her that Steven “wa s fooling around with There sa.” Chang said that when she hear d those alleg ations, “I ’m t h i n k i n g, if y ou say y ou are
repr esenting holy spirit why y ou bad mouth people. And that is not true. I don’t believe in that.

. . . There ’s no way Steve would fool around with There sa.” Chang asked Chai about t he C ampones’ alleg ations, and Chai denied them, say ing that she had thought Fr ancis was trustworthy but instead “his word and his action are totally reve rsed.” Chang testified that the Klines never told her any thing about bad behavior by Fr ancis but t h at another person told her that Fr ancis had behave d inappropria tely toward her persona lly and toward a few other women. Chang initially did not believe those alleg ations beca

use she believed Fr ancis to be a g ood person but started to second- g uess that afte r Fr ancis badmouthed Steven and There sa. She also said that Fr ancis at one point told her, “I ’ll
sue any body who is not on my

side.” The Klines also pre sented a ffidavits by :

• Kar en Robison, who aver red that in her pract i ce as a “license d Religious Science prac titioner,” she had counsele d three women wh o all eg ed that Fr ancis “had acte d inappropria tely , in a sexual wa y , towards them”; that she share d g ener al information about those alleg ations with Steven but did not disclose the names of the women; and that There sa Chai was not one of

the three women.

• Kar en Robison’s husband, who aver red that he and his wife lef t t h e Temple in 2011, that their decision to leave was unrela ted to any thing Steven had said, that he knew Steven to be honest, that he did not be lieve Steven would lie, and that Steven never alleg ed that Fr ancis had had a n aff air with Chai; and

24• Ninetee n people who initially beli e v e d in F r a n c is ’ s healing abilities but beca me disencha

nted with him. Those people all aver red t h at t hey had never hear d either of the Klines make disparag ing, defa

matory , or untrue comments about appellants. Sever al s t at ed that they believed F ranc is was a f

raud or that they believed he took advantag e of his followe rs.
Ap p ellants note that the Klines testified that they hear d simil ar rumors from other

women but disreg arde d them beca use they believed those women to be unreliable source s and arg ue that their failure to ask Robison about the source s of her alleg ations or to investiga te her alleg ations

more deeply should be viewed as evidenc e of malice. Howeve r, on this re co rd , we believe that evidenc e cuts ag ainst a find i n g of actua l malice. The Klines put cre dence in Robison and her evalua tion wher eas they wer e unwilling to believe or disseminate simil ar rumors from other source s they believed wer e not cre dible. That supports a conclusion that the Klines d i d n o t subjectively doubt t h e re l i abil ity of Robison and her source s of information. The Klines prese nted evidenc e showing that they did n o t en t erta in serious doubts about the vera city of Robison’s information. 5 App el l ants have not prese nted evidenc e to the contra ry . See Forbes , 124 S.W .3d at 171; Gillum , 778 S.W .2d at 572.

Be cause the Klines est ablished the defe nses of limit ations as to the claims ag ainst Steven and qualified immunit y as to the claims ag ainst both Steve n and Fa y , the trial court did not

Appellants attempt t o undermine the Klines’ asse rtions that they believed Robison to be 5 cre dible by noting that Robison claims to use “ang el rea ding” in her prac tice as a spiritual thera pist and char acte rizing Robison’s a lleg ations as “double hear say infere nces from a seanc e.” Howeve r, both Robison and Fra

ncis claim to c onsult with ang els in their profe ssion, and the re cord doe s not support a conc lusion that Robison g leane d her information from an ang el or a “seanc e.” Robison clea rly explained that she was told by multipl e women that Fr ancis had behave d improperly toward them and that at lea st one other woma n “implied” that she a

nd Fr ancis ha d a sexual relationship. 25err in dismiss ing appellants’ defa mation claim, reg ardle ss of whether appellants prese nted a prima fac ie ca se as to ea ch ele ment of def amation. See Tex. Ci v. Prac. & Rem. Code § 27.005(d).

Attor ney’s F ees I n their third issue, appellants arg ue that the trial court’s awa rd of attorney ’s fee s was improper beca

use the Klines did not seg reg ate the fee s incurre d by eac h of them. T h ey further complain that the aff

idavit supporting the Klines’ reque st for attorney ’s fee s did not sufficie n t ly show that the fee s wer e seg reg ated betwee n this case and a separ ate case broug ht by Steven ag ainst appellants rela ted to the sale of the far m. Finally , they complain that the aff idavit said only that the fee s wer e rea sonable, not that they wer e nece ssary . Be cause we reve rse the dismiss al of appellants’ claim ag ainst Steven related to the Michelson conver sation, we reve rse the trial court’s awa rd of attorney ’s fe es and r emand that issue for reconsidera tion in light of this opinion. See id. § 27.009 (attorne y ’s fe es aw ard is manda tory when TCPA motion is gra nted). 6

Conclusion Steven’s mot ion to dismiss under t he TCP A was not timely as t o the claim ag ainst him arising from the Michelson conver sation. Howeve r, as to the other clai m s , t h e motion was timely , the Klines established by a preponde ranc e of the evidenc e the essential elements of two valid defe ns es, and appellants have not shown err or in the trial court’s dismiss al under the TCPA. We

Although the Klines ask in their appellee ’s brief to have the attorney ’s fee awa rd modified 6 to the full reque sted amount of $23,250, they did not file a notice of appea l and thus may not reque st from this Court more favor able relief than was g rante d by the trial court. See Tex. R. App. P. 25.1 (par ty who seeks to alter trial court’s judgme nt must fi le notice of appea l, and appellate court g ener ally may

not gr ant more f

avora ble re lief than did t rial court to party who does not file not ice of appe al); Lubbock Cty. v. Tramme l’s Lubbock Bail Bonds , 80 S.W .3d 580, 584 (Tex. 2002). 26there fore aff irm the trial cour

t’s dismiss al of the claims ag ainst Fa y and the claims ag ainst Steven other than the one arising out of the Michelson conver sation. See id. § 27.005(d). We re verse the di s missal of the claim g rounded in the Michelson conver sation and the trial court’s awa rd of attorney ’s fe es and r emand those issues f or fur ther proc eeding s consistent with this opi nion.

__________________________________________ Cindy Olson Bour land, J ustice
Be fore Chief J ustice Rose, Jus tices F ield and B ourland Affir med in Part; Reverse d and Remande d in Part Filed: Aug ust 2, 2018

27