### 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. 03-17-00771- CV

Texas Jewelers Assoc iation, Rex Solomon, and Brad Koen, Appellan ts

v. Ann Glynn, Ap pellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 7-0 0503 1, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The Texas J ewe lers Association (TJA), Rex Solomon, and Br ad Koen challeng e the trial court’s order partially denying the ir motion to di smiss under the Texas Citi zens Participation
Act (TCPA). See generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Appellants argue that the trial court err ed by ref

using to dismiss Ann Gly nn’s claims of defa

mation and tortious interfe renc e with an exis ting contra ct. For the rea sons that follow, we will aff irm in part and reve rse and rende r in part.

BACK GR OUND

The TJ A i s a st atewide profe ssional org anization of retail jewe lers. At all rele vant times, Gly

nn serve d as Ex ecutive Direc tor of TJ A, Koen serve d as President, and Solomon serve das Secre tary /Trea surer . Gly

nn resig ned from her position in October of 2016 amidst alleg ations that $28,000 was missing f

rom TJ A’s ac counts. 1 Gly nn subsequently filed suit alleg ing that b eginni ng in Marc h of 2016 Solomon beg an “building a case ag ainst [Gly nn] for misuse of TJ A funds” in conce rt with Koen and J eanne Roberts Roe, another TJ A member. Solomon alleg edl y confr onted Gly nn during the TJ A annual meeting in September while shouting: “I want to know wher e the $28,000.00 is”; “[t] he tax return does not balanc e with the bank statement”; an d “[w]hat did y ou do with the m oney , what did y ou d o wi t h the $28,000.00? ” Gly nn aver red that Richard and Shelly Hirsch and unspecifie d
“conve ntion vendors and se curity personne l” hea

rd Solomon’s statements.
Severa l day s later, Solomon emailed Roe and members of the TJ A Boa rd of Direc tors “sele cted f

inancial doc uments and par ts of tax returns for TJA” that, Gly nn alleg es, gave the fa lse impression that funds wer e missing. Gly nn further alleg ed that Solomon and Koen wer e acting as TJ A’s ag ents. On October 14 , 2 0 1 6 , Wil liam R. Ward attended a meeting of the Houston Are a J ewe lers’ Association and overhe ard a conver sation betwee n Solomon and Alan L odinge r, another board me mber. Ward a

verr ed in an a ffidavit that Solomon told L odinge r that:

4. he had positive proof that $28,000.00 was missing from the TJ A bank acc ount and that Ann Gly nn was to blame. [S olomon] was making ref

ere nce to what appea

red to be bank documents and sever al other doc uments that he cla imed proved his ac cusations.

We take the following fac tual alleg ations from Gly nn’s live pleading , her aff idavit, and the 1 aff idavits of Wil liam R. Ward and Br ian Hoover

. Gly nn attache d all three aff

idavits to her response to the motion to di smiss. 2. . . 6. Rex continued to flash doc uments in front of Alan, claiming they wer e further proof that something was wrong with the way the executive direc tor was doing her job. Rex said he was “building a case ” ag ainst Ann Gly

nn to show the TJ A Ex ecutive Boa rd in J anuar

y of 2017. He said he, as trea surer, h ad s p en t the last sever al months compiling rec ords that proved the ex ecutive direc tor was g uilty of misusing TJA funds.

Ward called Gly

nn and informed her of the conver sation. Br ian Hoover , another board member,

aver re d i n a separ ate aff

idavit that Koen informed him of Solomon’s alleg ations in a phone call. Gly nn resig ned the same day

.

I n addition to the al l ege d l y false statements, Gly nn alleg ed that prior to her resig nation, Koen had ref used to approve a spon s o rs h i p d eal betwee n TJ A and United Precious Metals that would have y ielded Gly nn lucra tive commissions. The defe ndants timely filed a motion to dism is s a ll of Gly nn’s claims under the TCPA and attache d sworn aff

id av i t s fr o m Solomon and L odinge r. Gly nn filed a response and attache d aff idavits f rom herse lf, Ward, and Hoover

. Gly nn conce ded that the TCPA a pplied but c ontended that she had established by clea r and specific evidenc e a prima fa ci e case for eac h element of her claims. See id. § 27.005(c) (providing that the trial court may not g rant the motion to dismiss “if the party bring ing the leg al action establishes by clea r and specific evidenc e a prima fac ie case for eac h essential element of the claim in question”). The trial court enter ed an order g ranting the motion in part but denying it as to Gly nn’s defa mation claim ag ainst TJ A, Koen, and Solomon, and her claim

3of t ortious interfe re n ce with an ex isting contract aga inst Solomon and Koen. TJ A, S olomon, and

Koen timely

filed notice of

appea l. 2

TCP A DISMISSAL MECHANISM
To asser t a motion to dismiss under the TCPA, a party must show by a preponde ranc e of the evidenc e that a claim “is based on, rela tes to, or is in response to the [m ovant’s] exercise of: (1) the rig ht of fre e speec h; (2) the rig ht to petition; or (3) the rig ht of association.” Id. § 27.005(b);
Exx onMobil Pipeline Co. v. Coleman , 512 S.W .3d 895, 898 (Tex. 2017) (per curia m). The burden then shifts to the nonmovant to “esta blish[ ] by clea

r and specific evidenc e a prima fac ie case for eac h essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c)

. Even if the
nonmovant satisfies the second step, the trial court must dismiss the claim if the movant “esta blishes by a preponde ranc e of the evi d en ce ea ch essential element of a valid defe nse to the nonmovant’s claim.” Id. § 27.005(d). When deciding whether to dismiss a leg al action under the TCPA, the trial
court must consider “the pleading s and supporting and opposing aff idavits stating the fac ts on which the l iability or defense is base d

. ” Id

. § 2 7 .006(a)

. We revie w de novo whether a party car ried it s assig ned burden. Long Canyon Phase II & III Homeowne rs Ass’n, v. Cashion , 517 S.W .3d 212, 217 (Tex. App.—Austin 2017, no pet.).

ANALYSIS

Appellants contend in their first issue that Gly nn failed to establish a prima fac ie case for eac h essential element of her rema ining claims. Appellants argue in their second issue that they

Gly nn did not appeal the dismissal of her other c auses of

action. 2 4wer e entitled to dis m i s sal of the defa mation claim even if Gly nn established a prima fac ie case beca use appe llants established the def ense of qualified privileg e.

P rim a F acie Case

Gly nn’s burden “ca

n be restated in terms of three componen t s : (1) with respe ct t o ‘ea ch essential element of [each] claim in question,’ [sh e] m ust have prese nted (2) a ‘prima fac ie

case ’ (3) ‘by clea

r and specific evidenc e.’” Cavin v. Abbott , 545 S.W .3d 47, 71 (Tex. App.—Austin 2017, no pet.) (quoting Tex. Ci v. Prac. & Rem. Code § 27.005(c) ). A “ prima fa cie c ase” ref ers to “evide nce sufficie nt as a matter of law to establish a g iven fac t if it is not rebutted or contra dicted.”
In re Lipsky , 460 S.W .3d 579, 590 (Tex. 2015) (orig

. proc ee d i n g). S tated differ ently , it is “the minimum quantum of evide nce ne cessa ry to suppor

t a rational infere nce tha t the alleg ation of fa ct is true.” Id. (quoting In re E.I. DuPont de Nemours & Co. , 136 S.W .3d 218, 223 (Tex. 2004) (orig

. proce eding )). “Conclusory statements and bare , basele ss opinions are not probative and acc ording ly do not establish a prima fa cie c ase.” Cashion , 517 S.W .3d at 222 (interna l footnote omitted). 3
On the other hand, “cle ar and specific ” ref ers to the quality of ev i d en ce neede d to make a prima fac ie case . Serafine v. Blunt , 466 S.W .3d 352, 358 (Tex. App.—Austin 2015, no pet.). “The words ‘cle ar’ and ‘spec ific’ in the context of this statute have been interpre ted respe ctively to
mean, for the former , ‘unambig uous,’ ‘su re , ’ or ‘fr ee from doubt’ and, for the latter, ‘explicit’ or ‘re lating to a particula

r named thing.’ ” Hawxhurst v. Austin’s B o a t T ours , 550 S.W .3d 220, 230

A conclusory statement expresses “a fac tual infere nce without stating the underly ing fac ts 3 on which the infere nce is based.” Long Canyon Phase II & III Homeowne rs Ass’n, v. Cashion , 517 S.W .3d 212, 222 n.44 (Tex. App.—Austin 2017, no pet.). 5(Tex. App.—Austin 2018, no pet.) (quoti ng In re Lipsky , 460 S.W .3d at 590). Collectively , these

elements require that the “plaint i ff m ust provide enoug h detail to show the fac tual basis for its claim.” Bedford v. Spassoff , 520 S.W .3d 901, 904 (Tex. 2017) (per curiam).

Tortious Interference The elements of tortious interfe renc e with an exis ting contra ct are (1) a valid contra ct exis ts that is subject to interfe renc e, (2) the defe ndant willfully and intentionally interfe red with the
contra ct, (3) the interfe renc e proxi mately cause d injury to the plaintiff, and (4) the plaintiff incurre d
actua l damag e or loss. Community Health Sys. Prof’l Servs. Corp. v. Hansen , 525 S.W .3d 671, 689 (Tex. 2017). “The first element require s the exis tence of a valid contra ct.” Juliette Fowler Homes,
Inc. v. W elch Assocs., Inc. , 793 S.W .2d 660, 664 (Tex. 1990), supersede d on other grounds by

statut e a s s t a ted in Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W .3d 909, 923 (Tex. 2013). For

mation of a contra ct require s, among other things, an offe r, an ac ce p t ance in strict compliance with the offer, and a meeting of the m inds on the essential terms of the contra ct. See,
e.g. , USAA Tex. Lloyds Co. v. M enchac a , 545 S.W .3d 479, 501 n.21 (Tex. 2018). Gly nn argues in her brief to this Court that para g raph 12 of her aff idavit establishes the exist ence of a c ontrac t. That par ag raph state s: 4

Gly nn did n o t mention this claim in her response in the proce eding below and did not 4 addre ss it in her live pleading save for a g ener al asser tion that “Solomon a

nd Koen interfe red with the contra ct that Gly

nn had with TJA.” Gly

nn repe ats the s ame assertion in her a ppellate br iefing but doe s not se t out the details of her employ ment contra ct or g ive any indication of how Solomon and Koen’ s actions induced TJ A to brea ch it. See Serafine v. Blunt , 466 S.W .3d 352, 362-63 (Tex. App.—Austin 2015, no pet.) (obser ving that plaintiffs “we re require d to provide clea r and specific ev i d en ce that some obliga tory provision of the contra ct was brea ched” to maintain their claim of tortious interfe renc e with an exis ting contra ct). We conclude that Gly nn’s evidenc e is not clea

r and 6On sever al occa si ons betwee n September 26, 2016 and October 6, 2016, I spoke with Br ad Ko en about a business opportunity prese nted to T J A and my self from Dave Simi nski of United Precious Metals. Simi nski offe red me an ag ree ment to i n crease adver

tising and sponsorship with TJ A if TJ A memb er s would use United Precious Metals as a prec ious metal ref iner. Wit h eac h additional TJ A member as a customer, Simi nski would incre ase his adver tising and s p o n s o rship. During those dates and those conver sations, Koen flatly ref used to even consider the opportunity and repe atedly stated “that is never g oing to happen.” Such an arr ang ement would be benef icial to TJ A a

n d w o u ld ear

n commissions for me.
Gly nn expressly states that Koen, who was President of TJ A, re fused to acc ept Simi nski’s offe r. Gly nn prese nted no evidenc e—much less clea r and specific evidenc e—of the exis tence of a
contra ct subject t o interfe renc e. See Better Bus. Bureau of Metro. Dall., Inc. v. BH DFW , INC. , 402 S.W .3d 299, 310-11 (Tex. App.—Dallas 2013, pet. denied) (conc luding that nonmovant did not establish contra ct element of tortious-interfe renc e claim beca use there was no offe r and acc eptanc e);

see also Texas Disposal Sys. Landfil l, Inc. v. W aste Mgmt. Holdings, Inc. , 219 S.W .3d 563, 588 (Tex. Ap p .—Austin 2007, pet. denied) (“A cause of action for tortious interfe renc e will not lie in the abse nce of

a contr act.” ). Consequently , the trial cour t erre d in failing to dismi ss this claim. 5
Def am ation The elements of defa

mation include (1) the defe ndant published a false s t atement; (2) that defa

med the plaintiff; (3) with t h e re q u i site deg ree of fault reg arding the truth of the
specific enoug h to establish a prima fac ie case fo r t o rtious interfe renc e with her employ ment contra ct. See id. We note that Gly

nn asser ted a claim for tortious interfe renc e with prospec tive contra cts but 5 she does not appe al the trial c ourt’s dismissal of that claim. 7statement; and (4) damag es, unless the statement is defa matory per se. D Magazine Partners, L.P. v. Rosenthal , 529 S.W .3d 429, 434 (Tex. 2017).

Appellants asser

t in their brief to this Court t h at Gly nn failed to establish a prima fac ie case “of all elements” of her defa mation claim but they actua lly addr es s only publication. 6 Sp e c if ic a ll y , a p p e ll a n ts c o n te n d th a

t G ly nn ’ s a ffidavit is insufficient without third-par ty confirmati o n of Solomon’s statements, such as aff idavits from Richard and Shelly Hirsch or copies of Solomon’s emails. The TCP A ex pressly direc ts the t rial co u rt to consider “the pleadings and supporting and opposing a ffidavits stating the fa cts on which the liability or def ense is base d.” Te x . Civ. P rac . &
Rem. Code § 27.006(a). “[T] he TCPA contemplates primary relianc e on such proof.” Ree ves v. Harbor Am. Cent., Inc

. , 5 5 2 S

. W .3d 389, 393 (Tex. App.—Houston [14t h Dist.] 2018, no pet.). There is no require ment that the nonmovant “pre sent testimony o r o t h er evidence to satisfy [i ts] evidentiar y burden.” In re Elliott , 504 S.W .3d 455, 462 (Tex. App.—Austin 2016, o r ig

. p r o cee ding)

. We conclude that Gly

nn’s pleading s and sworn aff idavit descr ibing her confr ontation with Solomon and his emails to the board members constitute prima fa ci e p ro o f t hat Solomon published the
statements. Howev er , we ca n n ot say the same about Koen. Gly nn asser ted a defa mation claim
ag ainst Koen and Gly

nn but attributes the defa

matory statements to Solomon. Absent an alleg ation

The fir st element of de fama tion is that the defe ndant published a “f alse” statement. See, 6 e.g. , D Magazine Partners, L.P. v. Rosenthal , 529 S.W .3d 429, 434 (Tex. 2017)

. Solomon arg ued in her response to the court below that she is enti t l ed to a presumption of falsity beca use she is a private plai n ti f

f s u in g a n o n me d ia d efe ndant. This Court rec ently conclude d in simil ar circ umstances that a private plaintiff’s prima fac ie burden does not include providing evidenc e the statements wer e false beca use “fa lsity is presumed.” Camp v. Patterson , No. 03-16-00733- CV, 2017 WL 3378904, at *7 (Tex. App.—A u s tin Aug

. 3, 2017, no pet.) (mem. op.) (citing Cummins v. Bat W orld Sanctuary , No. 02-12-00285- CV, 2015 WL 1641144, at *10 (Tex. App.—For t Worth Apr. 9, 2015, pet. denied) (mem. op.)) . We apply the same holdinghere

.

8and proof

that Koen publis hed a defa matory statement, we conclude that Gly nn failed to e stablish a prima f acie case of def

amation ag ainst Koen. Assuming that appellants’ g ener al asser tion that Gly

nn’s evidenc e falls short of establishing a

prima fa cie c ase pr eser

ves a c halleng e to the re maining elements of de fama tion, we will briefly

addre ss them. A s a private citizen suing a nonme dia def endant, Gly

nn had the bur den
to prove that Solomon was at least neg lige nt. In re Lipsky , 460 S.W .3d at 596; Hancoc k v. Variyam , 400 S.W .3d 59, 65 n.7 (Tex. 2013). “Te x as co u rt s have define d neg lige nce in the defa mation
context as the ‘fa ilure to inve stiga te the truth or falsity of a statement befor e publication, and [t he] failure to act as a rea sonably prudent [person].’” Fawcett v. Rogers , 492 S.W .3d 18, 27 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (alter ations in orig inal) (quoting Newspaper Holdings, Inc.

v. Crazy Hotel Assisted Living, Ltd. , 416 S.W .3d 71, 85 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ); see H

oskins v. Fuc hs , 517 S.W .3d 834, 843 (Tex. A pp.—For t Worth 2016, pet. denied). Gly nn alleg ed in her live petition that “ther e was information available to Solomon” that would have
“ra is ed serious doubts about the truth of the statements being communicated and published by Solomon t o virtually

ever y member of

the TJA board.” She e x plained in her aff idavit:

The TJ A fiscal y ear runs from September 1 to Aug ust 31. The bank statement balanc e that sho u l d b e examined to support the 2014 TJ A tax return would b e the bank statement balanc e that ended Aug ust 31, 2015. Solomon was fee ding Boa rd Members and Lucinda Roge rs misleading information an d as king them to conclude that I had stolen $28,000.00. Gly nn’s sworn statement that Solo m o n fa i l ed to use TJ A’s Aug ust 2015 bank statement when

rec onciling the tax return amounts to clea r and specific evidenc e that he fa iled to investiga te. See

9Fawcett , 492 S.W .3d at 27 (holding that plaintiff’s affidavit asserting t h at d efe ndants wer e aware

that an audit was ongoing when they acc used hi m o f stealing funds established a prima fac ie case of neg lige nce)

. Gly

nn asser ted in her r esponse that Solomon’s acc usations wer e defamatory per se beca use he acc used her of stealing or misappropriating funds. “D ef am at i on per se occur s when

a statement is s o o b v i o u sly detrimental to one’s g ood name that a jury may presume g ener al damag es, such as for loss of reputa tion or for mental anguish.” Dallas Morning News, Inc. v. Tatum , 554 S.W .3d 614, 624 (Tex. 2018). We ag ree that Solomon’s st atements a re pr operly

classified a s defa mation per se beca

use S olomon acc used her of t heft or misapprop ri at i o n of funds. See, e.g. , 7
Fawcett , 492 S.W .3d at 26; Morrill v. Cisek , 226 S.W .3d 545, 550 (Tex. App.—Houston [1st Dist.] 2006, no pet.). As a

result, Gly

nn was not re quired to provide pr ima fac ie proof of damag es. We conclude that Gly

nn car ried her burden to establish a prima fac ie case of defa mation ag ainst Solomon but not ag ainst Koen. We overr ule appellants’ first issue as it perta ins to Gly nn’s def amation claim ag ainst Solom on and sustain it as to Koen.

We note that Solomon denied in his aff idavit that he made the statements attributed to him. 7 He contends that he merely informed Gly nn of “questions reg arding the re co n ci l i ation of [ TJ A’s] most rec ent tax return with the final financ ial statement.” He admits to emailing the board members afte r revie wing TJ A’s financ ial information but asser ts that he stressed in the emails that his finding s (pre sumably , that $28,000 was missing) “we re incomplete and had not been revie wed for complete and total acc urac y .” He also denies that he told L odinge r he possessed “proof positive” of Gly nn’s theft. L odinge r echoe d that asser tion in his own aff

idavit. Both aff

idavits raise fac tual discrepa ncies but neither conclusively proves the nature of Solomon’s statements. See W arner Bros. Entm’t, Inc. v. Jones , 538 S.W .3d 781, 801 (Tex. App.—Austin 201 7, pet. filed). (“I f a plaintiff provides evidenc e that establishes a prima fac ie case if left uncontra dicted and unexplained, the prima fac ie case only disappea rs when the true fa cts are conclusively shown by

other e vidence .”). 10Quali fi ed P rivilege Appellants arg

ue in their second issue that they are entitled to dismiss al beca use they established the defe nse of qualified privileg e. Even if the nonmovant car ries her burden to establish

a prima fac ie case , the TCPA direc ts the trial court to dismiss i f t h e m ovant “esta blishes by a preponde ranc e of the evidenc e eac h essential element of a valid defe nse to the nonmovant’s claim.” Tex. Ci v. Prac. & Rem. Code § 27.005(d); Coleman , 512 S.W .3d at 899.

A qualified privileg e attache s to a communication that is “made in g ood faith and the author, the rec ipient or a t h i rd p er s o n , or one of their family members, has an interest that is sufficie ntly aff

ecte d by the communication.” Burbage v. Burbage , 447 S.W .3d 249, 254 (Tex. 2014) (quoting Cain v

. Hearst Corp. , 878 S.W .2d 577, 582 (Tex. 1994)). Outside of the TCPA context , qualified privileg e is an aff irmative defe n s e that the defe ndant has the burden to prove unless the plaintiff’s petition aff

i rm atively establishes that the privileg e attache s. Id. I f the defe ndant establishes that the p ri v i l ege attache s, then “the burden shifts to the plaintiff to prove that the defe ndant made the statements with actua l malice.” Id

. (c i t i n g Dun & Bradstreet, Inc. v. O’Neil , 456 S.W .2d 896, 898 (Tex. 1970)). He re, both pa rties assume that r aising qualified privilege as a defe nse under

section 27.005(d) place s the burden on the movant to de monstrate lack of malice in

a way analog ous to a defe ndant moving for summary judgme nt. See, e.g. , Randall’s Food Mkts., Inc. v. Johnson , 891 S.W .2d 640, 646 (Tex. 1995) (obser ving that to be entitled to summary judgme nt

on qualified privileg e, a defe ndant “must conclusively establish that the alleg edly defa matory
statement was made with an abse nce of malice” ). Neither party contests this a pproac h, so we will addre s s t h e case as the parties litigated it in the court below. Cf. Alamo Heights Indep. Sch. Dist.

11v. Clark , 544 S.W .3d 755, 783 (Tex. 2018) (apply ing causation standard advocated by both parties without deciding whether standard w as cor

rec t). 8
Actual malice in the defa

mation context is a term of art. Huck abee v. Time W

arner Entm’t Co. , 19 S.W .3d 413, 420 (Tex. 2000). Unlike common-law malice, it does not ref er to spite

or ill-will but that the defe ndant “made the statement ‘with knowledg e that it was false or with

rec kles s d i s re gar d o f whether it was true or not.’” Id. (quoting New Y ork Times Co. v. Sullivan , 376 U.S. 254, 279 (1964))

. “Rec kless disreg ard” is a subjective standard that require s evidenc e that the defendant “ enter

tained ser ious doubts as to the truth” of t he st atement. Id. (quoting St. Amant

v. Thompson , 390 U.S. 727, 731 (1968))

. Appellants contend that Solomon’s af fidavit establishes that he spoke without actua l malice b ec ause he had a rea sonable basis for his statements: he revie wed all of the TJ A financ ial rec ords available to him and spok e with the acc ountants responsible for prepa

ring TJ A’s two most rec ent t ax returns. G ly nn’s competing affidavit allege s that he failed to revie w an available financ ial rec ord, the Aug ust 2015 bank statement, and called her and h er h u s band “con artists.” On the rec ord befor e us, and at this proce dural stag e of the
proce eding s, we cannot conclude that appellants established by a preponde ranc e of the evidenc e that Solomon acted without malice. We over rule a ppellants’ sec ond issue.

We st ress that we take no position on whether qualified privileg e qualifies as a defe nse 8 under se ction 27.005(d). 12CONCLUSION
We reve rse the trial court’s order to the extent that it denied app el l an t s ’ motion to dismiss Gly

nn’s d ef amation claim as to Koen and her tortious-interfe renc e claim as to all three appellants, a

n d r e n d e r judg ment dismiss ing those claims. We otherwise aff irm the trial court’s order

.

________________________________________ Cindy Olson Bour land, J ustice
Be fore Chief J ustice Rose, Jus tices Pury ear and B ourland Affir med in Part; Reverse d and Rende red in Part Filed: Oc tober 26, 2018

13