Affirmed in part; Reverse, Render and Remand in part and Opinion Filed March 13, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00566-CV 

JANE MCCURLEY BACKES D/B/A BACKES QUARTER HORSES AND TRACY 

JOHNS, Appellants 

V. 

KAREN MISKO AND MISKO QUARTER HORSES, LLC, Appellees 

On Appeal from the 429th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 429-01844-2013 

OPINION 

Before Justices Bridges, Lang, and Evans 

Opinion by Justice Bridges 

Appellant Jane McCurley Backes d/b/a Backes Quarter Horses (“Backes”) sued appellees 

Karen Misko and Misko Quarter Horses (“Misko”) for tortious interference and invasion of 

privacy. Appellee Tracy Johns (“Johns”) filed a petition in intervention alleging tortious 

interference. Misko, individually, filed a counterclaim against Johns for libel and against Backes 

for civil conspiracy to commit libel. Backes and Johns filed motions to dismiss under the 

Citizens Participation Act, chapter 27 of the Texas Civil Practice and Remedies Code. The trial 

court denied both motions. On appeal, Johns and Backes argue they met their burdens under 

Chapter 27; therefore, the trial court erred by denying their motions to dismiss. 

We affirm the trial court’s order denying Johns’s motion to dismiss. We reverse the trial 

court’s order denying Backes’s motion to dismiss and render judgment dismissing Misko’s civil 
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conspiracy counterclaim against Backes. We remand Backes’s case to the trial court for a 

determination of costs, attorney’s fees and other expenses as authorized under section 27.009(a). 

See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West 2015). 

Background 

The background of this case involves three women who are competitors in the quarter 

horse breeding business, who used social media to interact with other horse enthusiasts about 

horse-related issues. However, the rhetoric between the women turned personal and as further 

explained below, Misko filed a libel suit against Johns and a conspiracy to commit libel suit 

against Backes after Johns raised the issue of Munchausen-Syndrome-By-Proxy (“MSBP”) on a 

horse forum, and Misko believed the Post (as the parties refer to it throughout their briefing) 

related to her. 

Throughout the years, Misko’s daughter struggled with health issues. Misko often shared 

the struggles with others, including Backes and Johns, and mentioned the struggles on Facebook 

and horse forums. Doctors eventually diagnosed Misko’s daughter in 2008 with a neurological 

disorder called Reflex Neurovascular Dystrophy. 

On December 29, 2012, Misko posted a message on her Facebook wall requesting 

comments from readers about developing a ten-point evaluation system for five attributes in 

weanlings and yearlings for sale purposes. Within days, many people provided comments, 

including Backes and Johns. Backes commented about the subjectivity of such a point system 

because, “What you might think is a 9 I might think is a 6. It would all go back to person[al] 

opinions of likes and dislikes.” Misko acknowledged the subjectivity but said her goal “is trying 

to educate everyone so that they may gain confidence in their decisions rather than relying upon 

a trainer or checking with 5-10 friends and then making a decision.” Johns later asked Misko 

why “. . . would [you] want to discourage buyers from checking with friends and/or trainers prior 
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to purchasing?” Misko later clarified she would never discourage consulting with friends or 

trainers but was trying to establish a system to improve breeding. 

In a January 1, 2013 response directed to Johns, Misko asked Johns the following, “So, 

Tracy, could you please answer the question from the last time that you came onto my wall and 

never responded to me? What would a trainer have to do to your horses to make you leave their 

barn and disrupt your loyalty to them? I am seriously interested in your answer and am still 

waiting.” Johns claimed she missed the question, and said she would think about it. As others 

continued to provide input on the point system, Johns continued to argue it was a self-serving 

concept directed to support a particular breeder’s ideas. 

The banter continued between Johns and Misko regarding the point system, prior horse 

dealings, and the various trainers they had used in the past. Later, on January 1, 2013, Misko 

said to Johns: 

You have learned a great deal since 2002 from being bright, 

diligent, and having a great mentor, Tracy. I love your mind, work 

ethic, and outstanding care for your horses...you are impressive to 

me. Therefore, I simply want you to understand that I do like and 

respect you, but you and [Backes] do need to communicate on this 

wall with the proper facts concerning me, ok? . . . I am very happy 

to continue the discussion with you about this question but 

bringing in hidden agendas is a conflict I will not tolerate when 

you do not have many or all of the facts, whatsoever. 

Misko’s mention of Backes in her comment to Johns pulled Backes back into the 

Facebook chatter. Backes accused Misko of sounding like a lawyer and noted that “tones and 

questions on a computer vs live can come across wrong. Learn to give a person the benefit of the 

doubt :).” Misko responded that she could no longer give the two women the benefit of the 

doubt given the past three months of posts on her Facebook wall or Johns’s “silly winking smiley 

faces.” Misko’s comment to Backes continued: 

Seriously? If a person would review both of your statements, about 

so many subjects on my wall, do we all go back to Jr. High? I think 
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that tones are confused on the computer but patterns become 

crystal clear. We are acquaintances which is different than 

friends...we do not spend time together nor do we agree about 

choices regarding trainers. I respect you as a Mom and love what 

you have created with Audrey Grace’s memory ... it is so, so 

wonderful. :) I respect you as a fellow breeder and have always 

told folks to go over and check out your horses. I appreciated the 

care that you provided for my mares ... it was great. Still, we do 

not spend time together nor talk except on FB which is fine, but to 

me, a friend is like Tracy is to you. . . . I am not angry in any way, 

but I am not going to play games on FB. . . . Also, I know that you 

do most of what I had mentioned which is why I did not think that 

you would object so adamantly about a grading system since it is 

what you do every year with every foal. Why not put it into 

writing for others on your website? Anyhow, I still think that we 

have gleaned many insights and great ideas if I can collect them in 

a more expedient and easier to read summation. :) As a last 

request, I will ask you, like I did with Tracy, what actions from a 

trainer, to your horses, would force you to take them from their 

care and violate your trust and loyalty to them? You have had so 

many years with trainers, that your answer is very meaningful to 

me, Jane. I sincerely mean this which is why I continue to ask the 

question from both of you. I do appreciate your efforts and sharing 

of knowledge which is why I think that we have gotten along for 

so many years ... out of respect as Moms and fellow horse owners 

and breeders, I am off to be with my wonderful daughter. This has 

been exhausting?? LOL 

Backes then suggested Misko should put on the top of her page, “If your views are not like mine 

do not post.” Backes continued to question Misko about Misko’s previous problems with a 

breeder, whom Misko now said was great. Johns encouraged Misko to “take a break from the 

keyboard before you give yourself a stroke.” A male commenter noted that “pissing matches 

should be kept private ladies.” 

In the middle of the above January 1, 2013 discussion on Misko’s Facebook wall, Backes 

and Johns began posting messages on Backes’s Facebook wall. One post, shared from “The 

Ramblings of a Crazy Bitch,” featured the photo of a woman with the caption, “Did someone 

forget to put on their big girl panties?” Backes commented the post was not directed at Johns. 

Backes also mentioned that she tried to find the picture of a child sitting at a computer saying, 
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“the bitch blocked me,” but she could not find it. Johns responded she could not find the picture 

because she changed phones. Johns then asked, “Is it appropriate to do a preemptive strike?” 

Backes said no and that she wanted to figure out how Misko “gets out of the lie about my 

personal emails with her flat out talking bad about her new mentor.” Backes then asked if it was 

legal to post the emails. The next day, Misko saw these Facebook posts and advised Backes to 

check with her legal advisor. 

When another person inquired about the “drama,” Backes accused Misko of erasing 

comments regarding people’s contrary opinions on the ten-point system and responding to 

Backes’s and Johns’s criticism with “looooong, passive-aggressive posts . . . All while blinking 

her eyes in Disney Princess innocence . . . Hoping her followers don’t see her for who she is?” 

Misko denied erasing posts, and both women claimed to have preserved every word about recent 

exchanges. This ended the early January 2013 communications between Misko, Johns, and 

Backes. 

Towards the end of January 2013, the women once again began attacking each other on 

social media. Backes served as moderator of the “Who to Breed To” posting thread on a horserelated site called “Pleasurehorse.” Posts on the site included topics ranging from horse sales, 

pricing, and breeding services. On the site, Misko posted under the name “karenmisko.” Backes 

posted as “marepower,” and Johns posted as “tmk5.” 

In an affidavit attached to her response to the motions to dismiss, Misko claimed Backes 

announced on the “Who to Breed To” thread that one of Backes’s stallions tested positive for the 

HERDA genetic skin disease. This statement was inconsistent with several prior posts in which 

Backes claimed the stallion was HERDA negative. When Misko raised questions about the 

genetic testing of the stallion, Misko stated Backes immediately began personally attacking her 

through posts on the thread regarding her mental status and her horse breeding program. Backes, 
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as moderator, deleted these postings. Backes admitted to deleting the thread; therefore, the 

content of the posts are in the record only through affidavit testimony. 

Backes and Misko continued to bicker on the “Pleasurehorse” forum. In the early hours 

of January 29, 2013, Backes posted, “So for every sin you decided I committed it all goes back 

to just not liking me which I can live with. Now some of our fun debates I will miss but stalking 

me down wherever I post and even correcting my bad spelling is something I can live without.” 

Within an hour, Misko unfriended Backes and Johns from her Facebook account because 

although she could accept criticism and suggestions, she refused to tolerate such things when 

“mixed with innuendo or false facts.” 

On February 9, 2013 at 3:17 p.m., Johns, under her “tmk5” screen name, posted the 

following message (referred to as the “Post” by the parties) in a new thread on the 

“Anythingshowhorse” Delphi Forum: 

General- Munchausen Syndrome by Proxy 

From: tmk5 

to: All 

Has anyone ever known anyone with this disease/issue? 

If you have STRONG suspicions...to whom do you turn them 

over? 

I know this is a horse forum...but people have such vast life 

experiences, I thought someone could point me in the right 

direction.1

 

Within an hour, “trublu11” responded, “I can think of someone that fits the pattern that’s 

for sure. You can message me for some more info if needed.” Shortly thereafter, Johns 

responded to “trublu11” and said, “Thanks! Just odd behavior by one of the parents and has been 

going on for some time.” At 5:26 p.m., “dazookeeperz” replied to “tmk5” as follows: 

 1

 The ellipses are present in the original Post and do not indicate any deletion of text. 
 –7– 

Seriously, Tracy, 

What is WRONG with you, Jane and the other minions? It’s one 

thing to bicker amongst our adult selves. You are now going to 

bring children into it? My advice to you would be to batten down 

the hatches. I have a feeling this is a low blow that will not even 

be tolerated. 

Shame on you. Shame on the others. 

 Another comment by “lynnesmyname,” shared similar sentiments: 

Everyone can see right through you Tracy. What is wrong with 

you people. Do you not see how foolish you make yourself look 

coming on here saying that trash. You are a sad pathetic person 

and if you really had a concern for a child that might be the subject 

of this you certainly would not come on a public HORSE forum to 

see what to do. You’re a smart lady Tracy, surely you could figure 

out where to report such a person. 

Shameful, nasty, pathetic does not even describe this latest 

behavior. 

“Dazookeeperz” later added, “Everyone knows the venom you spew for your BFF Jane. . . .” 

“Lynnesmyname” also added, “The two of them only do or say whatever suits them at the time 

its spewing out of their collective mouths . . . When you need to have the last word, call out a 

child and say something horrific about their parent. Good job Tracy, you win...happy now?” 

Johns responded back at 8:19 p.m. on February 9, 2013 with the following: 

I want to thank everyone for the MULTITUDE of private emails 

and messages to me over the last hour or so. From those messages 

and three phone calls...I now have a GREAT resource available to 

help this child...that I was somehow attacked for trying to help. 

This makes no sense to me...and now I understand why people get 

tired of posting on forums. 

The people attacking me should be ASHAMED of themselves. 

EVERYONE that knows me closely...knows that I have worked 

since 1997 when my oldest daughter was born...to help children, 

whether through a formal organization or not. This is something 

near and dear to me, and always will be. 

So today’s learning...unless you are bashing someone...don’t post. 
 –8– 

Got it. 

On February 10, Johns was called out by one forum member for “playing the victim” and 

another member posted that “anyone with half an ounce of intelligence would know immediately 

to call local (or jurisdictional) child protective services; they wouldn’t go on a horse forum and 

ask what to do about it” because “that’s just blatantly devious.” Misko responded to Johns on 

the same day and informed her that Misko’s attorney would be contacting her about the names of 

the mother and child referred to in the Post for a thorough investigation. Misko also told Johns 

she contacted the moderator of the thread to lock it down so it could not be deleted. 

Misko stated in her affidavit she understood the Post to be directed at her and her 

daughter, and she believed it implied she needed to be reported to authorities for abusing her 

daughter as a result of MSBP. She stated any such accusation was utterly and completely false. 

Dr. V. Frank Cody, a psychiatrist and psychoanalyst who has treated Misko intermittently since 

1984 and on occasion treated her daughter, also provided an affidavit stating Misko does not 

suffer from, and has never suffered from, or acted against her daughter as a result of MSBP. 

Misko stated that within days of the Post, she received several Facebook messages from 

people she did not know asking her, “How could you have done that to your daughter since you 

take such good care of your horses,” and “I did not think you were capable of such a thing.” 

Despite Misko attaching almost one hundred pages of screen shots from Facebook and the 

Delphi Forum of the women’s conversations, she did not attach copies of these alleged messages 

to her affidavit. 

Misko later obtained affidavits from Geraldine White, Karen Redding, Barbara Mahon, 

Marci Braddock, and Paula Hogan, none of whom had ever met her, but they had communicated 

on message boards. The women stated that based on the prior attacks by “tmk5” and 

“marepower,” they understood the Post “referred to Karen Misko and her daughter, and I 
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believed it implied that Karen Misko needed to be reported to proper authorities because she had 

mistreated her daughter as a result of Munchausen Syndrome by Proxy.” 

On May 9, 2013, Backes filed a lawsuit alleging tortious interference and invasion of 

privacy based on Misko’s alleged communications with a genetics laboratory in early 2013 

regarding the HERDA test results on Backes’s stallion. Backes argued that because of Misko’s 

misleading publications about the stallion and his suitability as a breeding partner, prospective 

breeders elected not to enter into contracts with her. Johns filed her original petition in 

intervention the same day alleging tortious interference based on Misko’s alleged online 

harassment of would-be buyers of quarter horses who posted inquiries on Johns’s Facebook wall. 

Misko answered Backes’s petition on June 5, 2013 and answered Johns’s petition in intervention 

on July 13, 2013. 

On January 27, 2014, Misko filed an original counterclaim against Johns for libel and 

against Backes for civil conspiracy to commit libel. She alleged the Post by Johns constituted 

libel per se and Backes and Johns were “primarily involved in the business of selling services 

that compete with Misko and the internet postings that give rise to this libel action arose out of a 

commercial transaction in which the intended audience was actual or potential buyers or 

customers.” Misko further alleged Johns and Backes had a meeting of the minds for the purpose 

of wrongfully defaming her in a commercial setting in order to harm her reputation and business. 

 Backes and Johns filed motions to dismiss pursuant to Texas Civil Practice and 

Remedies Code chapter 27. Johns argued Misko’s counterclaim was brought in response to her 

exercise of protected speech, and Backes argued the counterclaim was an improper response to 

her right of association. They further challenged Misko’s ability to provide clear and specific 

evidence for each essential element of her libel and civil conspiracy claim. 
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The trial court held a hearing on the motion to dismiss on May 6, 2014. The trial court 

asked the parties to address two issues: (1) whether or not the claims are exempt under the 

chapter; and (2) the issue that no name is specifically mentioned in the Post. The trial court took 

the motions under advisement, but denied them both, without specifying the reason, on May 7, 

2014. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 

51.014(a)(12) (West 2015) (allowing interlocutory appeal from an order denying a motion to 

dismiss filed under section 27.003 of the Texas Civil Practice and Remedies Code). 

Chapter 27 Standard of Review 

Chapter 27 of the Texas Civil Practice and Remedies Code creates an early-dismissal 

mechanism intended to “encourage and safeguard the constitutional rights of persons to petition, 

speak freely, associate freely, and otherwise participate in government to the maximum extent 

permitted by law” while simultaneously protecting the rights of persons with meritorious claims. 

TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2015). Statutes like chapter 27 are 

commonly known as “anti-SLAPP statutes” because they are intended to curb “strategic lawsuits 

against public participation.” See Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 869 

(Tex. App.—Dallas 2014, no pet.). 

Chapter 27 instructs a trial court to dismiss a legal action if the party filing the motion to 

dismiss shows by a preponderance of the evidence that the action is based on, relates to, or is in 

response to the movant’s exercise of her right to free speech or exercise of the right of 

association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1), (3) (West 2015). The 

“[e]xercise of the right to free speech” is defined as “a communication made in connection with a 

matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A “[m]atter of 

public concern” includes an issue related to “health or safety.” TEX. CIV. PRAC. & REM. CODE 

ANN. § 27.001(7) (West 2015). The “[e]xercise of the right of association” is defined as “a 
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communication between individuals who join together to collectively express, promote, pursue, 

or defend common interests.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2). 

When determining whether a legal action should be dismissed under chapter 27, the trial 

court considers the pleadings and supporting and opposing affidavits stating the facts on which 

the liability or defense is based. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West 2015). 

The statute further instructs that the chapter “shall be liberally construed to effectuate its purpose 

and intent fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011 (West 2015). 

We review de novo whether Johns established by a preponderance of the evidence that 

she was exercising her right of free speech when she made the Post and whether Backes 

established by a preponderance of the evidence that she was exercising her right of association 

by engaging in a friendship with Johns in which they both posted on social media. See Pickens 

v. Cordia, 433 S.W.3d 179, 184 (Tex. App.—Dallas 2014, no pet.) (noting every Texas court of 

appeals to address standard of review has concluded the first prong is reviewed de novo); see 

also Cruz v. Van Sickle, No. 05-13-00191-CV, 2014 WL 6850971, at *4 (Tex. App.—Dallas 

Dec. 3, 2014, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). 

 If Johns and Backes, as the movants, establish by a preponderance of the evidence that 

Misko’s suit is based on, relates to, or is in response to their exercise of these rights, section 

27.005(b) requires dismissal of the suit unless Misko “establishes by clear and specific evidence 

a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM.

CODE ANN. §§ 27.003, .005(b), (c). The purposeful inclusion of this “clear and specific” 

requirement indicates Misko must satisfy an elevated evidentiary standard under section 27.005. 

See Young v. Krantz, 434 S.W.3d 335, 343 (Tex. App.—Dallas 2014, no pet.). 

We first consider whether Johns and Backes met their initial burden under section 

27.005(b). TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). 
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Johns’s Burden Under Section 27.005(b) 

Section 27.005(b) requires the trial court to dismiss, except as provided by subsection (c), 

if Johns shows by a preponderance of the evidence that Misko’s libel suit is based on, relates to, 

or is in response to Johns’s right of free speech. Id. Johns argues the Post related to a “matter of 

public concern,” defined under the chapter to include issues related to “health or safety.” TEX.

CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7)(A). She specifically claims “a question about a 

psychological condition/mental disorder—clearly involved ‘issues related to . . . health or 

safety.’” Misko has not provided any argument challenging Johns’s contention that she was 

exercising her right of free speech. However, because Johns’s must first meet her burden under 

section 27.005(b) that she was exercising her right of free speech, Misko’s failure to respond in 

the trial court or on appeal is of no consequence.2 

Although the definition of “matter of public concern” is defined to include an issue 

related to “health or safety,” chapter 27 does not define these terms. Undefined terms in a statute 

are typically given their ordinary meanings, but if a different or more precise definition is 

apparent from the term’s use in the context of the statute, we apply that meaning. Lanier v. E. 

Found., Inc., 401 S.W.3d 445, 462 (Tex. App.—Dallas 2013, no pet.). 

The dictionary defines “health” to mean “the state of being sound in body or mind.” 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1043 (1981). It defines “safety” to mean 

“the condition of being safe: freedom from exposure to danger: exemption from hurt, injury, or 

loss.” Id. at 1998. We consider these definitions along with the purpose of chapter 27, which “is 

to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate 

freely, and otherwise participate in government to the maximum extent permitted by law and, at 

 2

 In Misko’s response to the motions to dismiss, she relied on the commercial speech exemption provided by section 27.010 and argued, 

“Even if Chapter 27 applies to Misko’s claims,” she established a prima facie case on each essential element by clear and specific evidence. 
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the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” 

TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. 

Under the facts of this case, the Post created by Johns to “all” in the 

“Anythingshowhorse” public Delphi Forum inquired as to whether anyone knew someone with 

MBPS, and “If you have a STRONG suspicion...to whom do you turn them over?” MBPS is 

described in the American Psychiatric Association’s DSM as falsification of physical or 

psychological signs or symptoms, or induction of injury or disease, in another, associated with 

identified deception. Asking others about information related to a recognized psychological 

disorder is clearly an inquiry into someone’s state of mind, which falls under the definition of 

“health.” By stating her strong suspicion that someone suffered from MBPS, Johns indicated a 

child was suffering abuse from a parent. Thus, Johns’s statement not only involved a matter of 

someone’s health, but also a child’s safety. Because Johns’s statement related to health or safety, 

it fell within the statutory definition of “matter of public concern.” TEX. CIV. PRAC. & REM.

CODE ANN. § 27.001(7); see Shipp v. Malouf, 439 S.W.3d 432, 438 (Tex. App.— 

Dallas 2014, pet. denied) (“A matter of public concern is defined broadly; therefore, the 

legislature expressed its intent that the statute, enacted to protect the right of free speech, be 

construed broadly.”); see also Nguyen v. Dallas Morning News, L.P., No. 2-06-298-CV, 2008 

WL 2511183, at *5 (Tex. App.—Fort Worth June 19, 2008, no pet.) (mem. op.) (“Protection of 

children from abuse is of the upmost importance in Texas.”). 

While case law is scarce discussing what constitutes a “matter of public concern” related 

to “health or safety,” we find support for our conclusion by distinguishing Pickens v. Cordia, 433 

S.W.3d 179 (Tex. App.—Dallas 2014, no pet.) and Whisenhunt v. Lippincott, 416 S.W.3d 689 

(Tex. App.—Texarkana 2013, pet. filed). 
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In Pickens, the appellees sued appellant for invasion of privacy by public disclosure of 

private facts, defamation, statutory libel, and intentional infliction of emotional distress for 

remarks Pickens published on his blog about family members. Id. at 181. Pickens moved to 

dismiss the case under chapter 27 alleging appellees’ lawsuit implicated his right to freedom of 

speech. Id. at 182. In addressing the first prong, Pickens argued his blog concerned issues 

related to “addiction, parental abuse, fathers’ responsibilities to their children and family 

dynamics,” all of which he contended related to health and safety. Id. at 184. This court agreed 

these issues “generally may be matters of public concern,” but Pickens’s blog was “more akin to 

a personal diary of his journey from drug addiction to recovery in which he draws upon his 

perceived family experiences . . . . Its primary focus is Michael.” Id. As such, the type of 

private life statements recounted on the blog did not “implicate the broader health and safety 

concerns or community well-being concerns contemplated by chapter 27.” Id. 

In reaching its conclusion, Pickens relied on Miranda v. Byles, 390 S.W.3d 543 (Tex. 

App.—Houston [1st Dist.] 2012, pet. denied). Although not a chapter 27 case, Miranda

discussed private facts and public issues. The case involved a step-grandfather who sued for 

slander and intentional infliction of emotional distress after the defendant made false statements 

that he sexually assaulted his step-granddaughter. Id. at 548. On appeal, the appellant 

challenged the trial court’s finding that the sexual abuse allegations were a private, rather than a 

public, issue. Id. at 554. The appellant argued allegations of sexual abuse “implicate a question 

of public importance.” Id. In determining whether the issue was a private matter, the appellate 

court noted an issue is not a public issue simply because it is a controversy of interest to the 

public. Id. A matter can be a public issue because people in the public are discussing it or 

because people other than the immediate participants in the controversy are likely to feel the 

impact of its resolution. Id. In concluding the trial court did not err in determining the alleged 
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sexual assault was a private issue, the appellate court noted there was no evidence in the record 

the matter was being discussed by anyone other than officials in charge of the investigation and 

the family. Id. Nor was there any evidence anyone other than the family was likely to feel the 

impact of the resolution. Id. 

Thus, relying on Miranda and following a similar analysis, Pickens concluded there was 

no evidence suggesting the public was discussing Pickens’s blog or that anyone other than family 

members would likely feel the impact from it. Pickens, 433 S.W.3d at 185. As such, Pickens’s 

blog entries describing personal drug addiction and abuse did not implicate a matter of public 

concern to satisfy his initial burden under section 27.005(b) that his family’s lawsuit was in 

response to his right to free speech. Id. at 185. Thus, the trial court properly denied his motion 

to dismiss. Id. at 187. 

In Whisenhunt, a nurse anesthetist filed suit against the defendants, with whom he had 

worked, for several causes of action including defamation. 416 S.W.3d at 691. Attached to 

Whisenhunt’s petition were internal emails containing the alleged defamatory remarks. Id. The 

defendants moved to dismiss the lawsuit under chapter 27 arguing the emails related to matters 

of public concern “in the areas of health and safety, community well-being, and a service in the 

market place” because they discussed Whisenhunt’s conduct as a nurse. Id. at 697. The trial 

court agreed and granted the motion. The court of appeals reversed concluding “the TCPA does 

not apply to speech that is only privately communicated.” Id. at 700. A person must be 

exercising his right to speak freely in public for chapter 27 to apply and internal emails were not 

of a public nature. Id. 

Here, unlike Pickens and Whisenhunt, the Post was not on someone’s personal blog or 

contained in private emails between individuals, but rather written in a public internet forum 

frequently visited by others. The Post invited responses and in fact, garnered both positive and 
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negative replies. It received 1255 views and one hundred twenty-six responses, seventeen of 

which are in the record. Thus, unlike Pickens and Miranda, the record contains evidence that 

people besides Johns, Backes, and Misko engaged in discussions about the Post. 

Accordingly, we conclude the evidence shows the Post was a communication made in 

connection with an issue of public concern. Thus, Johns was exercising her right of free speech, 

and Misko’s lawsuit is based on, relates to, or was filed in response to Johns’s exercise of that 

right. 

Backes’s Burden Under Section 27.005(b) 

We now address whether Backes met her burden of showing by a preponderance of the 

evidence that Misko’s civil conspiracy suit is based on, relates to, or is in response to Backes’s 

right of association. Chapter 27 defines the exercise of the right of association as “a 

communication between individuals who join together to collectively express, promote, pursue, 

or defend common interests.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2). 

In Misko’s counterclaim against Backes, Misko described the disagreements posted 

between the women on social media beginning in January 2013. She asserted that while some of 

the postings involved issues of “shared concern and interest among the internet horse 

community, such as genetic testing, others were personal attacks against Misko and her 

business.” Misko further contended that after she complained about the tenor of Backes’s posts 

on the forum in which Backes served as moderator, Backes was removed as moderator in 

February 2013. Misko alleged she believed Backes blamed her for removal and “in spite, sought 

revenge against Misko.” Shortly thereafter, the Post appeared on the “Anythingshowhorse” 

Delphi Forum. Misko alleged Johns and Backes, acting in concert, were “negligent in writing 

and publishing the postings about Misko discussed above on the internet.” 
 –17– 

While Misko’s counterclaim focuses on the Post, she also supports her conspiracy claim 

against Backes by relying on the heated discussions between the women over Misko’s suggested 

point system, over the genetic testing of Backes’s stallion, and over Backes’s removal as 

moderator of the forum to support her contention that Backes sought revenge against her. These 

types of discussions clearly fall under the “right of association” as they were “communication[s] 

between individuals who join together to collectively express, promote, pursue, or defend 

common interests” within the horse community. TEX. CIV. PRAC. & REM. CODE ANN. 

§ 27.001(2); see Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV, 

2014 WL 411672, at *5 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.) (alleged 

defamatory emails sent by the executive director of a law enforcement labor union to members 

of the union fell within chapter 27 definition of “right of association” because the content of the 

emails were communications between individuals joined together to collectively express, 

promote, or defend the common interests of police officers). 

As Backes argued in her motion to dismiss, Misko’s claim does nothing more than attack 

and complain about Backes’s right of association: “[T]he counterclaim against Backes is based 

on, relates to, or is in response to Backes purportedly exercising her right to associate with Johns, 

who in turn apparently exercised her protected right of speech in a manner Misko found 

offensive . . . .” We agree. Johns and Backes are close friends. As friends, they have the right 

to associate with each other on social media, particularly when it involves a common interest 

such as horse breeding.3

 Thus, Misko’s lawsuit is based on, relates to, or was filed in response to 

Backes’s association with Johns on social media. 

 3

 During oral argument, Misko argued for the first time that Backes should not be allowed to deny her involvement in the Post and at the 

same time, seek dismissal under chapter 27 based on her right of association. She argued such an argument flies in the face of this court’s 

holding in Pickens, in which we held that when a motion to dismiss is premised on the right to speak freely, yet the person filing the motion 

denies writing the very communication that is the focus of the motion, chapter 27 does not apply. 433 S.W.3d at 188. Misko did not raise this 

argument in her brief; therefore, we will not address it. See TEX. R. APP. P. 39.2 (“Oral argument should emphasize and clarify the written 
 –18– 

Before addressing whether Misko met her burden under section 27.005(c) to provide 

clear and specific evidence of each essential element of her claims against Johns and Backes, we 

address Misko’s argument that the commercial speech exemption applies and supports the trial 

court’s denial of the motions to dismiss. See TEX. CIV. PRAC. REM. CODE ANN. § 27.010 (West 

2015); see also Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 

(Tex. App.—Dallas 2013, pet. denied) (concluding that after the Better Business Bureau 

established the business review fell within the exercise of free speech as defined by chapter 27, 

BH DFW had the burden to establish the communication was exempt from the statute). 

Application of Section 27.010 Exemption 

Misko argues she proved her claims are exempt from dismissal under section 27.010. 

Johns and Backes respond the Post does not relate to or arise from any of the parties’ business 

activities; therefore, the exemption does not automatically apply to deny dismissal of their 

claims. As explained below, we agree with Johns and Backes. 

Section 27.010(b) states: 

[The TCPA] does not apply to a legal action brought against a 

person primarily engaged in the business of selling or leasing 

goods, or services, if the statement or conduct arises out of the sale 

or lease of goods, services, or an insurance product, insurance 

services, or a commercial transaction in which the intended 

audience is an actual or potential buyer or customer. 

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b). This section is described as a “commercial 

speech exception.” Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 

71, 89 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). It has been construed to mean that 

for the exemption to apply, the statement must be made for the purpose of securing sales in the 

 arguments in the briefs.”); see also Foster v. Richardson, 303 S.W.3d 833, 839 n.6 (Tex. App.—Fort Worth 2009, no pet.) (refusing to consider 

arguments raised in oral argument about deficiencies in an expert affidavit that were not raised in brief). 
 –19– 

goods or services of the person making the statement. Id. at 88–89. The party asserting the 

exemption bears the burden of proving its applicability. Id. at 89. 

Misko alleged in her counterclaim that Backes and Johns are competitors in the horse 

breeding and sales business. She further alleged, “Backes and Johns are primarily involved in 

the business of selling services that compete with Misko and the internet postings that give rise 

to this libel action arose out of a commercial transaction in which the intended audience was 

actual or potential buyers or customers.” Her reference to “internet postings” relates only to the 

Post; therefore, our analysis of whether the exemption applies focuses on (1) whether Misko’s 

libel and conspiracy claims are against Johns and Backes, as individuals primarily engaged in the 

business of selling or leasing goods or services in the quarter horse industry; (2) whether the 

statements made in the Post “arise out of” the sale or lease of goods or services in the quarter 

horse business; and (3) whether the intended audience for the Post was an actual or potential 

buyer or customer. If Misko fails to provide evidence supporting any one of these elements, she 

has not met her burden to prove the applicability of the exemption. 

Misko relies on Backes’s statement in her original petition that Misko is a “competitor of 

Plaintiff’s in the quarter horse breeding business” and Johns’s statement in her petition in 

intervention that Misko is “a sometime competitor of Intervenors in the quarter horse business” 

as evidence that Backes and Johns are primarily engaged in selling horses and horse-breeding 

services. Misko also relies on her affidavit in which she explains how she utilizes the internet to 

promote and market her business and to locate customers. She then summarily states, “I know 

that Backes and Johns also use the internet, and particularly Facebook and the Delphi Forum 

horse-related sites, to promote and conduct their horse-breeding and horse-sale businesses in 

similar fashion.” Misko alleges the exhibits she attached to her affidavit, which consist of 

screenshots of internet postings, establish further proof. We do not agree. 
 –20– 

Regardless of whether Misko is a competitor with Backes or a sometimes competitor 

with Johns in the quarter horse business, this is not evidence that Johns and Backes are primarily 

engaged in the business of selling or leasing goods or services in the quarter horse industry. In 

fact, in a December 31, 2012, 6:10 p.m. post, Backes said to Misko, “I have a full time job 

raising money for charity and breeding has to come second.” 

The internet postings Misko attached to her affidavit, and detailed at length above in the 

background section, reference (1) the women’s disagreements about Misko’s suggested point 

system, (2) the postings on Backes’s personal Facebook wall, and (3) the comments on the 

Delphi Forum regarding whether Backes’s stallion tested HERDA positive. While we agree 

these posts shed light on the women’s interactions and their ideas within the quarter horse 

industry, we do not agree the posts provide any evidence that Johns and Backes are “primarily 

engaged in the business of selling or leasing goods or services.” 

Even if we determined Johns and Backes are primarily engaged in the business of selling 

or leasing goods or services, Misko failed to meet her burden that the Post “[arose] out of the 

sale or lease” of these goods or services. Misko asks this court to consider the entire background 

of exchanged postings between the parties and the alleged suspicious timing of the Post to 

conclude the Post arose out of the sale or lease of goods or services. 

Section 27.010 clearly states the chapter does not apply to an action if the statement 

arises out of the sale or lease of goods or services. On its face, the Post concerns a general 

inquiry into whether anyone is familiar with MSBP and if so, asks for information about 

reporting a suspected individual. Nothing within the Post involves the sale or lease of any goods 

or services related to the quarter horse industry or any other related business. Thus, the Post 

does not arise out of the sale or lease of goods or services. 
 –21– 

In reaching this conclusion, Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 

2014 WL 1432012 (Tex. App.—Austin, Apr. 11, 2014, pet. denied) (mem. op.) is instructive. In 

that case, BCG sued Kinney for breach of contract, breach of fiduciary duty, and violations of 

the Lanham Act based on statements Kinney made in a post on an internet website. Id. at * 1. 

While the opinion does not provide the details of the internet post, the court noted Kinney made 

a single post describing BCG’s business operations “based on his experience as a former 

employee,” and Kinney wrote negative opinions about BCG’s owner and the company. Id. 

Kinney posted anonymously and the post contained no reference to Kinney or his business. Id. 

BCG argued Kinney’s statements did “arise out of” the sale of Kinney’s services because Kinney 

was in the business of selling legal recruiting services and “it is ‘obvious’ that Kinney would not 

have made the post had it not been for the fact that he and BCG were competitors.” Id. at *6. 

The court did not find this argument persuasive. It noted Kinney posted anonymously on a 

website, and his comments made no reference whatsoever to his business or the sale of his 

services. Id. at *7. The court further stated BCG offered no evidence the post was “for the 

purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial 

transactions in, [Kinney’s] goods or services or in the course of delivering [Kinney’s] goods or 

services.” Id. 

Similar to Kinney’s post, Johns made no reference whatsoever in the Post to her alleged 

horse business or the sale of any horses or horse-related services. Misko’s reasoning for the Post 

is similar to BCG’s “it’s obvious” argument. However, Misko failed to bring forth evidence, 

except speculation and suspicious timing, that the Post arose out of the sale or lease of goods or 

services. Thus, Misko failed to meet her burden that Johns’s statement or Backes’s conduct fell 

within section 27.010’s exemption. 
 –22– 

Having concluded the exemption does not apply, we now address whether Misko met her 

burden of providing clear and specific evidence to support each element of her claims against 

Johns and Backes. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). 

Misko’s Burden Under Section 27.005(c) as to Her Libel Claim Against Johns 

To avoid dismissal of her lawsuit, Misko was required to bring forth clear and specific 

evidence establishing a prima facie case for each essential element of her libel claim against 

Johns. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Johns argues Misko failed to meet her 

burden because (1) the Post did not concern Misko as a matter of law and (2) the Post is a 

protected expression of opinion. 

As to Misko’s burden, the statute does not define “clear and specific.” Therefore, we 

apply the ordinary meaning of these terms. Schimmel v. McGregor, 438 S.W.3d 847, 855-56 

(Tex. App.—Houston [1st Dist.] 2014, pet. filed). “Clear” means “unambiguous,” “sure,” or 

“free from doubt,” and “specific” means “explicit” or “relating to a particular named thing.” 

KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, 

pet. denied) (citing BLACK’S LAW DICTIONARY 268, 1167 (8th ed. 2004)). 

 Libel is defamation expressed in written or other graphic form. TEX. CIV. PRAC. & REM.

CODE ANN. § 73.001 (West 2011). A written expression encompasses one that appears as text on 

an internet website. See Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 144–45 (Tex. 

App.—Fort Worth 2009, pet. denied). A libel plaintiff must prove that the defendant (1) 

published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with 

either actual malice, if the plaintiff was a public official or public figure, or negligence, if the 

plaintiff was a private individual, regarding the truth of the statement. Rehak, 404 S.W.3d at 727 

(citing WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998)). 
 –23– 

A statement is defamatory if it tends to injure the subject’s reputation, to expose her to 

public hatred, contempt, ridicule, or financial injury, or to impeach her integrity, honesty, or 

virtue. Am. Heritage Capital, LP, 436 S.W.3d at 875. A statement may be false, unpleasant, 

abusive, or objectionable without being defamatory in light of the surrounding circumstances. 

Id. Whether a statement is capable of a defamatory meaning is initially a question of law for the 

court. Id. Moreover, to be actionable, a statement must assert an objectively verifiable fact 

rather than an opinion. Id.; see also Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 

2011, no pet.). Merely expressing a defamatory statement in the form of an “opinion” does not 

shield it from tort liability because opinions often imply facts. Avila v. Larrea, 394 S.W.3d 646, 

658 (Tex. App.—Dallas 2012, pet. denied). We classify a statement as fact or opinion based on 

the statements verifiability and the entire context in which the statement was made. Bentley v. 

Bunton, 94 S.W.3d 561, 581 (Tex. 2002). Whether a statement is a statement of fact or opinion 

is also a question of law. Am. Heritage Capital, LP, 436 S.W.3d at 875. 

As to the first libel element, it is undisputed Johns authored the Post. Further, Johns does 

not challenge or argue on appeal that Misko failed to prove Johns acted negligently regarding the 

truth of the statement. Therefore, we focus our analysis on the second libel element: whether 

Misko provided clear and specific evidence the Post was defamatory as to her. 

Johns first argues the Post did not concern Misko as a matter of law because the Post did 

not specifically name her. To establish that the Post “concerned” her, Misko needed to prove the 

Post was specifically directed towards her. Kaufman, 291 S.W.3d at 144. In other words, “[i]n 

order to entitle one to maintain an action for an alleged defamatory statement, it must appear that 

he is the person with reference to whom the statement is made.” Id. (citing Newspapers, Inc. v. 

Matthews, 339 S.W.2d 890, 893 (Tex. 1960)). However, it is likewise true that it is not 

necessary for the individual referred to be named if those who knew and were acquainted with 
 –24– 

Misko understood from reading the Post that it referred to her. Matthews, 339 S.W.2d at 894; 

Kaufman, 291 S.W.3d at 145; Houseman v. Publicaciones Paso del Norte, S.A. DE C.V., 242 

S.W.3d 518, 525 (Tex. App.—El Paso 2007, no pet.) (“A publication is ‘of and concerning the 

plaintiff’ if persons who knew and were acquainted with him understood from viewing the 

publication that the defamatory statement referred to him.”); Allied Mktg. Group, Inc. v. 

Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex. App.—Eastland 2003, pet. denied). 

 Misko attached several affidavits to her response to the motions to dismiss. Geraldine 

White testified she was familiar with the postings of Misko, Johns, and Backes on the various 

horse forums. She knew of Misko’s daughter’s prior health struggles because Misko 

occasionally commented on them in postings on Facebook and the Delphi Forums. White also 

read the back and forth comments between Misko and Backes concerning Backes’s stallion 

testing HERDA positive on the deleted “Who To Breed To” Forum. 

Then, on January 31, 2013, White received an email from Karen Thompson in which she 

described Misko as a “bit of a strange duck.” Thompson also shared her suspicions that Misko 

had a “major case of Munchausen’s by proxy reading the trials and tribulations of her daughter.” 

When White read the Post several days later, based on Thompson’s email and the dissention 

between Johns, Backes, and Misko on social media, White “understood the posting as pointing to 

Karen Misko and her daughter, and I believed it implied that Karen Misko needed to be reported 

to the authorities because she had mistreated her daughter as a result of Munchausen Syndrome 

by Proxy.” White further explained the Post did not pose a real question, but instead made an 

accusation that Misko was a child abuser. 

 Karen Redding, Barbara Mahon, Marci Braddock, and Paula Hogan, also provided 

affidavits stating their familiarity with the women and their interactions on various social media 
 –25– 

sites. They also testified they believed the Post was directed at Misko and her daughter and that 

the Post insinuated Misko should be reported to authorities for abusing her daughter. 

 These women’s affidavits unambiguously and explicitly state they knew upon reading the 

Post that it related to Misko. Although the Post did not refer to Misko by name, the evidence is 

“clear” and “specific” to establish the Post “concerned” Misko because those who knew and 

were acquainted with her understood from reading the Post that it referred to her. Matthews, 339 

S.W.2d at 894; Kaufman, 291 S.W.3d at 145. 

 Although not a chapter 27 case, we find the libel analysis in Diaz v. Rankin, 777 S.W.2d 

496 (Tex. App.—Corpus Christi 1989, no writ) similar to the present facts. In that case, two 

owners of a golf course filed a libel and slander suit after the defendant made a statement during 

a radio broadcast pertaining to the location of a golf tournament and “whether participants would 

have to go up there and play with dope dealers.” Id. at 498. Plaintiffs admitted the broadcast did 

not mention them by name, but referred to the owner and operator of the golf course. Id. 

Defendants moved for summary judgment arguing, among other things, the statements were not 

defamatory because they did not mention the plaintiffs or the golf course. Id. In response to the 

summary judgment, plaintiffs attached an affidavit in which one listener testified he knew the 

broadcasted statement referred to the plaintiffs because they owned the golf course and were 

registered participants in the tournament. Id. In concluding a fact issue existed to deny summary 

judgment, the court recognized a statement does not have to specifically name a plaintiff to be 

defamatory. Id. at 499. “Every listener does not have to understand the statement to be a 

reference to the individual plaintiff as long as there are some who reasonably do.” Id.; see also 

Allied Mktg. Group, Inc., 111 S.W.3d at 173 (the “of and concerning” issue is whether persons 

viewing the televised segment regarding an alleged sweepstakes scam thought the segment 

referred to the actual company who conducted sweepstakes despite the broadcast’s attempt to use 
 –26– 

a fake company name, and plaintiff provided evidence in support of its defamation suit that some 

viewers thought the segment accused the actual company of engaging in a sweepstakes scam). 

Thus, similar to the Diaz affidavit, Misko’s affidavits, which each contained screenshots of the 

Post and subsequent comments, established evidence that some of the readers of the Post 

reasonably understood the statements to be a reference to her. Cf. Fitzmaurice v. Jones, 417 

S.W.3d 627, 633 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (passing reference to “lies” 

spread on Facebook did not meet burden of establishing clear and specific evidence of libel 

claim when party failed to attach any evidence of statements appearing on Facebook to petition 

or response to motion to dismiss). Therefore, we conclude Misko established the Post concerned 

her. 

 We now turn to Johns’s argument that the Post was not defamatory because it was a 

protected expression of opinion. Johns contends a statement that is nothing more than rhetorical 

hyperbole is not actionable as defamation, and “Misko even characterizes the Post [as] a 

‘rhetorical question.’” 

While we agree rhetorical hyperbole is not actionable, a rhetorical question is not the 

same as rhetorical hyperbole. A “rhetorical question” is defined as “a question not intended to 

elicit an answer but asked for rhetorical effect often with an assumption that only one answer is 

possible.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1946 (1981). “Rhetorical 

hyperbole” has been defined as “extravagant exaggeration [that is] employed for rhetorical 

effect.” Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex. App.—San Antonio 1999, pet. denied) 

(citing WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 592, 1011 (1988 ed.)). For example, 

the use of “rewarding,” “ripping off,” and “bilking” when reviewed in context have been 

considered rhetorical hyperbole. Rehak, 404 S.W.3d at 729. 
 –27– 

The Post, however, as argued by Misko is a rhetorical question. Misko provided clear 

and specific evidence that many people read and understood Johns’s “question” as a transparent 

accusation against her, as the Post was written in such a way that readers familiar with Misko 

knew she was the only possible person Johns had a “STRONG suspicion” of suffering from 

MSBP and allegedly abusing her daughter. 

In reaching this conclusion, we are mindful of our holding in Avila v. Larrea, 394 S.W.3d 

646, 659 (Tex. App.—Dallas 2012, pet. denied) in which we concluded the title of a broadcast 

posted on the internet, “Lawyer in Dallas Defrauding the Undocumented?” was phrased as a 

question, rather than an objectively verifiable fact, when the appellant did not explain, and the 

record did not show, how the title asserted an objectively verifiable fact. However, as previously 

stated, Misko provided clear and specific evidence that the Post asserted an objectively verifiable 

fact about her—whether she suffered from MSBP. Injuring a child or placing a child in 

imminent danger of injury constitutes a felony. See TEX. PENAL CODE ANN. 22.04 (West Supp. 

2014). Mothers have been convicted of medical child abuse, which is also referred to as MSBP. 

See Williamson v. State, 356 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (mother 

convicted of two first-degree felony offenses of injury to a child and sentenced to fifteen years’ 

confinement for each offense, to run concurrently); Austin v. State, 222 S.W.3d 801 (Tex. 

App.—Houston [14th Dist.] 2007, pet. ref’d) (mother convicted of felony injury to a child and 

sentenced to ninety-nine years’ incarceration). Further, a doctor such as Dr. V. Frank Cody, a 

psychiatrist and psychoanalysis who treated Misko for years, is capable of diagnosing and 

confirming whether Misko suffers from MBPS. He specifically denied that Misko suffered from 

the psychological disorder. As such, Misko established the Post, as written, was an accusation 

against her of child abuse due to MBPS, which is an objectively verifiable fact. 
 –28– 

 On the facts before us, we conclude Misko offered clear and specific evidence 

establishing a prima facie case of each element of her libel suit against Johns. Thus, the trial 

court correctly denied Johns’s motion to dismiss under section 27.005(c). Having reached this 

conclusion, we need not address Misko’s argument that Johns’s motion to dismiss was waived 

because Johns failed to timely set the motion for hearing pursuant to section 27.004(a). TEX.

CIV. PRAC. & REM. CODE ANN. § 27.004(a) (“A hearing on the motion under Section 27.003 

must be set not later than the 60th day after the date of service of the motion . . .”). 

Misko’s Burden Under Section 27.005(c) as to Her Civil Conspiracy Claim Against Backes 

To avoid dismissal of her claim against Backes, Misko was required to bring forth clear 

and specific evidence establishing a prima facie case for each essential element of her civil 

conspiracy claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Backes argues Misko failed 

to bring forth any evidence to support a meeting of the minds between Backes and Johns to 

create and publish the Post. Misko responds the overall context of the women’s postings, which 

include “The Ramblings of a Crazy Bitch” photo, their attempts to find the picture of “the kid at 

the computer saying the bitch blocked me,” and the “vitriol” against her on the deleted “Who to 

Breed To” thread show a conspiracy. Misko also relies on the “preemptive strike” post by Johns 

on Backes’s Facebook wall. Backes replies any alleged agreement between her and Johns to 

publish insults on social media that occurred prior to the Post is not clear and specific evidence 

of a conspiracy to publish the Post. We agree. 

 The essential elements of a civil conspiracy are (1) two or more persons; (2) an object to 

be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more 

unlawful, overt acts; and (5) damages as a proximate result. Anderton v. Cawley, 378 S.W.3d 

38, 60 (Tex. App.—Dallas 2012, no pet.). The object to be accomplished must be either an 

unlawful purpose or a lawful purpose to be achieved by unlawful means. Id. A defendant’s 
 –29– 

liability for conspiracy depends on “participation in some underlying tort for which the plaintiff 

seeks to hold at least one of the named defendants liable.” Cotton v. Weatherford Bancshares, 

187 S.W.3d 687, 701 (Tex. App.—Fort Worth 2006, pet. denied). Recovery for civil conspiracy 

is not based on the conspiracy but on the underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 

681 (Tex. 1996) (orig. proceeding) (op. on reh’g). A civil conspiracy claim may be proved by 

circumstantial evidence and reasonable inferences from parties’ actions. In re Lipsky, 411 

S.W.3d 530, 549 (Tex. App.—Fort Worth 2013, orig. proceeding). 

 The crux of Misko’s argument is that because of the various postings between Backes 

and Johns prior to the Post, many of which are mean-spirited, this Court should infer Backes and 

Johns agreed to create and publish the Post. Chapter 27 requires more than an inference that 

there was a meeting of the minds between the two women. Rather, it requires clear and specific 

evidence. See KTRK Television, Inc., 409 S.W.3d at 689 (citing BLACK’S LAW DICTIONARY 268, 

1167 (8th ed. 2004)) (defining “clear” as “unambiguous,” and “specific” as “explicit” or 

“relating to a particular named thing”). The evidence relied on by Misko does not meet this 

threshold. 

 The “The Ramblings of a Crazy Bitch” photo with the words, “Did someone forget to put 

on their big girl panties?” and their attempts to find the picture of “the kid at the computer saying 

the bitch blocked me,” is not evidence of a meeting of the minds between Johns and Backes to 

publish the Post. These pre-Post comments have nothing to do with Misko’s daughter, her 

health, or MBPS; therefore, no such implication can be made about some meeting of the minds 

about an object to be accomplished, which is the Post.4

 4

 Misko argues Backes and Johns have “miscast” her civil conspiracy claim as being a conspiracy to publish the Post; however, Misko 

claims theirs was a conspiracy to defame her, which was “furthered and accomplished by Johns’ Munchausen post.” Regardless of how Misko 

claims to have pleaded her conspiracy claim, she still has failed to bring forth clear and specific evidence supporting an essential element of the 

claim–a meeting of the minds between Johns and Backes to defame her. 
 –30– 

 The post on Backes’s Facebook wall in which Johns asked, “Is it appropriate to do a 

preemptive strike?” was answered by Backes with a “No.” Any leap by Misko that Backes must 

have accepted the proposal, despite her clear negation of it, is pure conjecture and speculation. 

Further, the record contains no clear and specific evidence about what Johns meant by 

“preemptive strike.” 

 Accordingly, we conclude Misko did not establish through clear and specific evidence a 

prima facie case that Johns and Backes agreed to defame her; therefore, Misko failed to carry her 

burden under section 27.005(c). 

 In reaching this conclusion, we reject Misko’s spoliation argument. Misko contends 

Backes’s deletion of posts on the “Who to Breed To” Delphi Forum gives rise to a presumption 

the deleted posts supported Misko’s conspiracy claim against Backes. We do not agree. 

 A party who establishes that spoliation has occurred may be entitled to a presumption that 

the destroyed evidence would not have been favorable to the destroyer. Rico v. L-3 Commc’ns 

Corp., 420 S.W.3d 431, 437 (Tex. App.—Dallas 2014, no pet.). Such a presumption is 

appropriate when a party has deliberately destroyed evidence or has failed to either produce or 

explain the evidence’s nonproduction. Id. In determining whether a spoliation presumption is 

justified, a trial court considers whether (1) there was a duty to preserve the evidence; (2) the 

alleged spoliator breached this duty; and (3) the spoliation prejudiced the non-spoliator’s ability 

to present its case or defense. Id. Assuming without deciding that Backes had a duty to preserve 

the postings and breached the duty, we consider whether the deleted posts prejudiced her ability 

to present her conspiracy claim. 

The affidavits submitted by White and Redding stated Johns and Backes were 

aggressively attacking Misko personally and challenging the integrity of her horse breeding 

program on the deleted thread. The thread also discussed whether Backes’s stallion tested 
 –31– 

positive for HERDA. White and Mahon testified Backes called Misko “bat shit crazy” on the 

deleted thread. 

 Misko herself testified she recalled some of the content of the deleted thread, which 

related to Backes’s admission a stallion tested HERDA positive, which was inconsistent with a 

prior statement. Misko stated Backes and Johns began personally attacking her mental status and 

her horse breeding program. She “observed the close timing and quantity of these postings 

against me on the deleted thread and that they described me as being unstable and with Backes 

stating that one of my mares might be HERDA positive.” 

 Having considered this evidence, we conclude Misko’s ability to present her conspiracy 

to commit libel claim has not been prejudiced by any destruction of evidence. No one testified 

Johns and Backes agreed to write and publish the Post. Further, no one testified Misko’s 

daughter or her health were discussed in the deleted thread. Rather, the evidence shows the 

deleted thread discussed genetic horse testing and personal attacks against Misko. It did not 

discuss or mention MSBP. Accordingly, Misko has provided no evidence from which the trial 

court could conclude she was prejudiced in her ability to present her case such that she may be 

entitled to a spoliation presumption. Rico, 420 S.W.3d at 437 (stating party who establishes 

spoliation has occurred may be entitled to a presumption that the destroyed evidence would not 

have been favorable to the destroyer). 

 Because Misko failed to carry her burden under section 27.005(c), the trial court erred by 

denying Backes’s motion to dismiss. We reverse the trial court’s judgment and render judgment 

dismissing Misko’s counterclaim against Backes for civil conspiracy to defame Misko. 

Conclusion 

We affirm the trial court’s order denying Johns’s motion to dismiss. We reverse the trial 

court’s order denying Backes’s motion to dismiss and render judgment dismissing Misko’s 
 –32– 

counterclaim against her. We remand Backes’s case to the trial court for a determination of 

costs, attorney’s fees and other expenses as authorized under section 27.009(a). See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.009(a). 

140566F.P05 

 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE 
 –33– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JANE MCCURLEY BACKES D/B/A 

BACKES QUARTER HORSES AND 

TRACY JOHNS, Appellants 

No. 05-14-00566-CV V. 

KAREN MISKO AND MISKO QUARTER 

HORSES, LLC, Appellees 

 On Appeal from the 429th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 429-01844-2013. 

Opinion delivered by Justice Bridges. 

Justices Lang and Evans participating. 

 In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order 

denying appellant Tracy Johns’s motion to dismiss. 

 We REVERSE the trial court’s order denying appellant Jane McCurley Backes d/b/a/ 

Backes Quarter Horses and RENDER judgment dismissing appellees’ Karen Misko and Misko 

Quarter Horses, LLC’s civil conspiracy counterclaim against appellant Jane McCurley Backes 

d/b/a/ Backes Quarter Horses. We REMAND appellant Jane McCurley Backes d/b/a/ Backes 

Quarter Horses’s case back to the trial court for a determination of costs, attorney’s fees and 

other expenses as authorized under TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a). 

 It is ORDERED that Jane McCurley Backes d/b/a/ Backes Quarter Horses recover her 

cost of this appeal from Karen Misko and Misko Quarter Horses, LLC. 

It is ORDERED that Karen Misko and Misko Quarter Horses, LLC recover their cost of 

this appeal from Tracy Johns. 

Judgment entered March 13, 2015.