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

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00566-CV JANE MCCURLEY BACKES D/B/A BACKES QUAR TER 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 interfe rence and invasion of privacy. Appellee Tracy Johns (“Johns”) filed a petition in intervention alleging tortious interference. Misko, indi vidually, 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 erre d 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 dismis s and render judgment dismissing Misko’s civil–2– conspiracy counterclaim against Backes. We remand Backes’s case to the trial court for a determination of costs, attorney’s fees and othe r expenses as authorized under section 27.009(a). See T EX
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. C ODE A NN . § 27.009(a) (West 2015). Background The background of this case involves three wo men 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 be tween 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 ra ised the issue of Munchausen -Syndrome-By-Proxy (“MSBP”) on a horse forum, and Misko believed the Post (as th e parties refer to it throughout their briefing) related to her. Throughout the years, Misko’s da ughter struggled with health issues. Misko often shared the struggles with others, including Backes a nd Johns, and mentioned the struggles on Facebook and horse forums. Doctors eventually diagnose d Misko’s daughter in 2 008 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 th e subjectivity but said her goal “is trying to educate everyone so that they may gain conf idence in their decisions rather than relying upon a trainer or checking with 5-10 friends and then making a decisi on.” Johns later asked Misko why “. . . would [you] want to discourage buyers from checking with friends and/or trainers prior–3– to purchasing?” Misko later clarified she woul d never discourage consulting with friends or trainers but was trying to establis h a system to improve breeding. In a January 1, 2013 response directed to J ohns, Misko asked Johns the following, “So, Tracy, could you please answer th e question from the last time that you came onto my wall and never responded to me? What would a trainer ha ve 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, a nd said she would think about it. As others continued to provide input on the point system, Johns continued to argu e it was a self-serving concept directed to support a pa rticular breeder’s ideas. The banter continued between Johns and Misk o 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 fact s concerning me, ok? . . . I am very happy to continue the discussion w ith you about this question but bringing in hidden agendas is a co nflict I will not tolerate when you do not have many or all of the facts, whatsoever. Misko’s mention of Backes in her commen t 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 he r 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–4– that tones are confused on the computer but patterns become crystal clear. We are acquainta nces 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 fe llow breeder and have always told folks to go over and check out your horses. I appreciated the care that you provided for my ma res ... it was great. Still, we do not spend time together nor talk ex cept on FB which is fine, but to me, a friend is like Tracy is to you. . . . I am not a ngry 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 wh ich 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 fo rce you to take them from their care and violate your trust and loya lty to them? You have had so many years with trainers, that your answer is very meaningful to me, Jane. I sincerely mean this wh ich is why I con tinue to ask the question from both of you. I do a ppreciate your efforts and sharing of knowledge which is why I thin k 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 shou ld put on the top of her page, “I f 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 F acebook wall. One post, shared from “The Ramblings of a Crazy Bitch,” fe atured 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,–5– “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 “d rama,” Backes accused Misko of erasing comments regarding people’s contrary opinion s on the ten-point system and responding to Backes’s and Johns’s criticism with “looooong, passi ve-aggressive posts . . . All while blinking her eyes in Disney Princess innocence . . . Hopi ng her followers don’t see her for who she is?” Misko denied erasing posts, an d both women claimed to have pr eserved 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 ofthe “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 th e name “karenmisko.” Backes posted as “marepower,” a nd 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 Ba ckes immediately began personally attacking her through posts on the thread regarding her mental status and her horse breeding program. Backes,–6– as moderator, deleted these postings. Backes admitted to deleting the thread; therefore, the content of the posts are in the reco rd 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 ever y 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 a nd 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, und er 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 w ith this disease/issue? If you have STRONG suspicio ns...to whom do you turn them over? I know this is a horse forum...bu t people have such vast life experiences, I thought someone c ould point me in the right direction. 1 Within an hour, “trublu11” responded, “I can th ink of someone that fits the pattern that’s for sure. You can message me for some more info if needed.” S hortly 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 th e 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 advi ce 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, “Eve ryone knows the venom you spew for your BFF Jane. . . .” “Lynnesmyname” also added, “The two of them onl y 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 thei r 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 hou r or so. From those messages and three phone calls...I now have a GREAT resour ce 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 closel y...knows that I have worked since 1997 when my oldest daughter was born...to help children, whether through a formal organizati on or not. This is something near and dear to me, and always will be. So today’s learning...unless you ar e 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 protectiv e 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 atto rney 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 coul d not be deleted. Misko stated in her affidavit she understood the Post to be directed at her and her daughter, and she believed it implie d she needed to be reported to authorities for abusing her daughter as a result of MSBP. She stated any su ch accusation was utterly and completely false. Dr. V. Frank Cody, a psychiatrist and psychoanaly st who has treated Misko intermittently since 1984 and on occasion treated her daughter, also pr ovided 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 he r, “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 pa ges of screen shots from Facebook and the Delphi Forum of the women’s conversations, she di d not attach copies of these alleged messages to her affidavit. Misko later obtained affidavi ts 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 att acks by “tmk5” and “marepower,” they understood the Post “refer red to Karen Misko and her daughter, and I–9– 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 allegi ng tortious interferen ce and invasion of privacy based on Misko’s allege d communications with a gene tics laboratory in early 2013 regarding the HERDA test results on Backes’s stallion. Backes ar gued 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 origin al 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, 20 13 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 li bel. She alleged the Po st by Johns constituted libel per se and Backes and Johns were “primarily involved in the busine ss of selling services that compete with Misko and the internet postings th at give rise to this lib el action arose out of a commercial transaction in which the intended audience was actual or potential buyers or customers.” Misko further alleged Johns and Ba ckes 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 dism iss 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, an d Backes argued the counterclai m 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.–10– The trial court held a hearing on the motion to dismiss on May 6, 201 4. 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 T EX
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. C ODE A NN . § 51.014(a)(12) (West 2015) (allowing interlocutor y 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 par ticipate in government to the maximum extent permitted by law” while simultaneously protecting the rights of persons with meritorious claims.
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. C ODE A NN . § 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 righ t to free speech or exercise of the right of association. T EX
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. C ODE A NN . § 27.005(b)(1), (3) (West 2015). The “[e]xercise of the right to free speech” is defi ned as “a communication made in connection with a matter of public concern.” T EX
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. C ODE ANN. § 27.001(3). A “[m]atter of public concern” includes an issue re lated to “health or safety.” T EX
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. C ODE A NN . § 27.001(7) (West 2015). The “[e]xercise of th e right of association” is defined as “a–11– communication between individuals who join together to collectiv ely express, promote, pursue, or defend common interests.” T EX
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. C ODE A NN . § 27.001(2). When determining whether a legal action s hould be dismissed under chapter 27, the trial court considers the pleadings and supporting and opposing affidav its stating the facts on which the liability or defense is based. T EX
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. C ODE A NN . § 27.006 (West 2015). The statute further instructs that the chapter “shall be liberally construed to effectuate its purpose and intent fully.” T EX
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. C ODE A NN . § 27.011 (West 2015). We review de novo whether Johns establishe d by a preponderance of the evidence that she was exercising her right of free speech wh en 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 w ith 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 6 850971, at *4 (Tex. App.—Dallas Dec. 3, 2014, no pet.); see also T EX
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. C ODE A NN . § 27.005(b). If Johns and Backes, as the movants, establ ish by a preponderance of the evidence that Misko’s suit is based on, relates t o, or is in response to their exercise of these rights, section 27.005(b) requires dismissal of the suit unless Mis ko “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” T EX
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. C ODE A NN . §§ 27.003, .005(b), (c). The purposeful in clusion 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 Back es met their initial burden under section 27.005(b). T EX
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. C ODE A NN . § 27.005(b).–12– Johns’s Burden Under Section 27.005(b) Section 27.005(b) requires the tria l court to dismiss, except as provided by subsection (c), if Johns shows by a preponderance of the evidence th at 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 rela ted to “health or safety.” T EX
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. C ODE A NN . § 27.001(3), (7)(A). She specifica lly claims “a question about a psychological condition/mental disorder—clearly i nvolved ‘issues related to . . . health or safety.’” Misko has not provid ed any argument challenging Johns ’s contention that she was exercising her right of free speech. However, b ecause Johns’s must first meet her burden under section 27.005(b) that she was exer cising 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 de fine 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 contex t 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 “t he state of being sound in body or mind.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1043 (1981). It defines “safety” to mean “the condition of being safe: freed om from exposure to danger: ex emption 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 ar gued, “Even if Chapter 27 applies to Misko’s cl aims,” she established a prima facie case on each essential element by clear and speci fic evidence.–13– the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
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. C ODE A NN . § 27.002. Under the facts of this case, the Po st created by Johns to “all” in the “Anythingshowhorse” public Delphi Forum inquir ed as to whether anyo ne knew someone with MBPS, and “If you have a STRONG suspicion...t o whom do you turn them over?” MBPS is described in the American Psychiatric Associ ation’s DSM as falsific ation of physical or psychological signs or symptoms, or induction of injury or disease, in another, a ssociated with identified deception. Asking others about info rmation 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 definitio n of “matter of public concern.” T EX
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. C ODE A NN . § 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 cons titutes a “matter of public concern” related to “health or safety,” we find suppor t 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).–14– In Pickens , the appellees sued appellant for inva sion of privacy by pub lic disclosure of private facts, defamation, statutory libel, and in tentional 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 al leging appellees’ lawsuit implicat ed 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 th eir 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 di d not “implicate the broa der health and safety concerns or community well-being con cerns 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. Th e case involved a step-gra ndfather who sued for slander and intentional infliction of emotional distress after the defendant made false statements that he sexually assaulte d 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 in terest to the public. Id . A matter can be a public issue because pe ople in the public are discussing it or because people other than the immediate participan ts 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–15– sexual assault was a private issue, the appellate c ourt 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 Pick ens’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 dr ug addiction and abuse did not implicate a matter of public concern to satisfy his initial burden under sec tion 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 agains t the defendants, with whom he had worked, for several causes of action includi ng defamation. 416 S.W.3d at 691. Attached to Whisenhunt’s petition were internal emails c ontaining the alleged defamatory remarks. Id . The defendants moved to dismiss the lawsuit under ch apter 27 arguing the emails related to matters of public concern “in the areas of health and sa fety, 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 ch apter 27 to apply and inte rnal emails were not of a public nature. Id

. Here, unlike Pickens and Whisenhun t, the Post was not on so meone’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–16– negative replies. It received 1255 views and one hundred tw enty-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 enga ged in discussions about the Post. Accordingly, we conclude the evidence s hows 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, re lates to, or was filed in respons e to Johns’s exercise of that right. Backes’s Burden Under Section 27.005(b) We now address whether Backes met her bu rden of showing by a preponderance of the evidence that Misko’s civil conspi racy 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 collectiv ely express, promote, pursue, or defend common interests.” T EX
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. C ODE A NN . § 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 con cern and interest among the internet horse community, such as genetic testing, others we re personal attacks against Misko and her business.” Misko further contende d that after she complained about the tenor of Backes’s posts on the forum in which Backes served as mode rator, Backes was rem oved 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 di scussed above on the internet.”–17– While Misko’s counterclaim focuses on the Po st, she also supports her conspiracy claim against Backes by relying on the heated discus sions between the women over Misko’s suggested point system, over the genetic testing of Back es’s stallion, and over Backes’s removal as moderator of the forum to support her contention th at 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 coll ectively express, promote, pursue, or defend common interests” within the horse community. T EX
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. § 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 direct or of a law enforcement labor union to members of the union fell within chapter 27 definition of “rig ht of association” because the content of the emails were communications between individuals joined together to collectively express, promote, or defend the common in terests 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 ag ainst Backes is based on, relates to, or is in response to Backes purporte dly exercising her right to associate with Johns, who in turn apparently exercised her protec ted right of speech in a manner Misko found offensive . . . .” We agree. Johns and Backes are close friends. As frie nds, they have the right to associate with each other on social media, pa rticularly when it involves a common interest such as horse breeding. 3 Thus, Misko’s lawsuit is based on, re lates 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 an d at the same time, seek dismissal under chapter 27 based on her right of a ssociation. 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 premis ed on the right to speak freely, yet the person filing the motion denies writing the very communication that is the focus of the mo tion, chapter 27 does not apply. 433 S.W.3d at 188. Misko di d not raise this argument in her brief; theref ore, we will not address it. See T EX
. R. A PP
. 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 th e commercial speech exemption applies and supports the trial court’s denial of the motions to dismiss. See T EX
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. C ODE A NN . § 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) (concludi ng that after the Better Business Bureau established the business review fell within the ex ercise of free speech as defined by chapter 27, BH DFW had the burden to establish the commun ication 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 fr om any of the parties’ business activities; therefore, the exem ption does not automatically appl y 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 pot ential buyer or customer. T EX
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. C ODE A NN . § 27.010(b). This section is described as a “commercial speech exception.” Newspaper Holdings, Inc. v. Cr azy 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 st atement must be made for the pur pose 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 Back es and Johns are competitors in the horse breeding and sales business. She further allege d, “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 refe rence to “internet posti ngs” relates only to the Post; therefore, our analysis of whether the exemption applies focuse s 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 “aris e out of” the sale or lease of goods or services in the quarter horse business; and (3) whether the intended audi ence for the Post was an actual or potential buyer or customer. If Misko fail s 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 orig inal petition that Mis ko is a “competitor of Plaintiff’s in the quarter horse breeding busine ss” 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 primar ily engaged in selling horses and horse-breeding services. Misko also relies on he r 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 us e the internet, and particularly Facebook and the Delphi Forum horse-related sites, to promot e and conduct their horse-breedi ng and horse-sale businesses in similar fashion.” Misko alleges the exhibits sh e attached to her affidavit, which consist of screenshots of internet postings, estab lish further proof. We do not agree.–20– Regardless of whether Misko is a competito r 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 att ached to her affidavit, and de tailed at length above in the background section, reference (1) the women’s disagreements about Mi sko’s suggested point system, (2) the postings on Backes’s persona l Facebook wall, and (3) the comments on the Delphi Forum regarding whether Backes’s stal lion tested HERDA positive. While we agree these posts shed light on the women’s interac tions and their ideas within the quarter horse industry, we do not agree the posts provide any ev idence that Johns and Backes are “primarily engaged in the business of selling or leasing goods or services.” Even if we determined Johns and Backes ar e primarily engaged in the business of selling or leasing goods or services, Mis ko 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 th e alleged suspicious timing of the Post to conclude the Post arose out of the sa le 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 serv ices. 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 th e Post involves the sale or lease of any goods or services related to the quarter horse industry or any other re lated 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 pos t, the court noted Kinney made a single post describing BCG’s business opera tions “based on his experience as a former employee,” and Kinney wrote negative opinion s 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 lega l 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 persuasi ve. It noted Kinney posted anonymously on a website, and his comments made no reference what soever to his business or the sale of his services. Id . at *7. The court further stated BCG o ffered 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 refere nce 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. Ho wever, 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 st atement or Backes’s conduct fell within section 27.010’s exemption.–22– Having concluded the exemption does not appl y, we now address wh ether Misko met her burden of providing clear and specific evidence to support each element of her claims against Johns and Backes. See T EX
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. C ODE A NN . § 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 wa s required to bring forth clear and specific evidence establishing a prima facie case for each essential element of her libel claim against Johns. T EX
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. C ODE A NN . § 27.005(c). Johns argues Misko failed to meet her burden because (1) the Post did not concern Mis ko as a matter of law and (2) the Post is a protected expre ssion of opinion. As to Misko’s burden, the stat ute does not define “clear an d 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 part icular named thing.” KTRK Television, Inc. v. Robinson , 409 S.W.3d 682, 689 (Tex. A pp.—Houston [1st Dist.] 2013, pet. denied) (citing B LACK ’ S L AW D ICTIONARY 268, 1167 (8th ed. 2004)). Libel is defamation expressed in written or other graphic form. T EX
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. C ODE A NN . § 73.001 (West 2011). A written expression enco mpasses 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 pl aintiff must prove th at the defendant (1) published a statement; (2) that was defamatory c oncerning the plaintiff; (3) while acting with either actual malice, if the plai ntiff was a public official or public figure, or negligence, if the plaintiff was a private in dividual, 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 subjec t’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 statemen t 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 becau se opinions often imply facts. Avila v. Larrea , 394 S.W.3d 646, 658 (Tex. App.—Dallas 2012, pet. denied). We classi fy 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 stat ement 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. Therefor e, we focus our analysis on the second libel element: whether Misko provided clear and specific evidence th e 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 na med if those who knew and were acquainted with–24– Misko understood from reading the Po st 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 ‘o f and concerning the plaintiff’ if persons who knew and were ac quainted 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.—Eas tland 2003, pet. denied). Misko attached several affidavits to her re sponse 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 Mi sko and Backes concerning Backes’s stallion testing HERDA positive on the delete d “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 tr ibulations of her daughter.” When White read the Post several days late r, based on Thompson’s email and the dissention between Johns, Backes, and Misko on social medi a, White “understood the posting as pointing to Karen Misko and her daughter , and I believed it implied that Ka ren Misko needed to be reported to the authorities because she had mistreated he r daughter as a result of Munchausen Syndrome by Proxy.” White further explaine d the Post did not pose a real question, but instead made an accusation that Misko was a child abuser. Karen Redding, Barbara Mahon, Marci Brad dock, and Paula Hogan, also provided affidavits stating their familiarity with the wome n and their interactions on various social media–25– sites. They also testif ied they believed the Post was direct ed at Misko and he r 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 r eading 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 th e 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 th e 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 menti on the plaintiffs or the golf course. Id . In response to the summary judgment, plaintiffs atta ched 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 i ssue 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 ha ve to understand the statement to be a reference to the individual plaintiff as long as there ar e some who reasonably do.” Id .; see also Allied Mktg. Group, Inc ., 111 S.W.3d at 173 (the “of and co ncerning” issue is whether persons viewing the televised segment regarding an alleged sweepstakes scam thought the segment referred to the actual company who conducted sweepst akes despite the broad cast’s attempt to use–26– a fake company name, and plainti ff provided evidence in support of its defamation suit that some viewers thought the segment accuse d 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 evid ence 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.) (pa ssing reference to “lies” spread on Facebook did not meet burden of esta blishing clear and specif ic evidence of libel claim when party failed to attach any evidence of statements appeari ng on Facebook to petition or response to motion to dismiss) . Therefore, we conclude Mis ko 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. Jo hns contends a statement that is nothing more than rhetorical hyperbole is not actionable as defamation, and “Misko even ch aracterizes the Post [as] a ‘rhetorical question.’” While we agree rhetorical hype rbole is not actionable, a rh etorical question is not the same as rhetorical hyperbole. A “rhetorical que stion” is defined as “a question not intended to elicit an answer but asked for rh etorical effect often with an a ssumption that only one answer is possible.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1946 (1981). “Rhetorical hyperbole” has been defined as “extravagant ex aggeration [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 W EBSTER ’ S N INTH N EW C OLLEGIATE D ICTIONARY 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 wh ich we concluded the title of a broadcast posted on the internet, “Lawyer in Dallas De frauding 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 obj ectively verifiable fact. However, as previously stated, Misko provided clear and sp ecific evidence that the Post as serted 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 T EX
. P ENAL C ODE A NN . 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 doct or 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 deni ed that Misko suffered from the psychological disorder. As such, Misko es tablished the Post, as written, was an accusation against her of child abuse due to MBPS, wh ich is an objectively verifiable fact.–28– On the facts before us, we conclude Mi sko offered clear and specific evidence establishing a prima faci e 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 argumen t that Johns’s motion to dismiss was waived because Johns failed to timely set the motion fo r hearing pursuant to section 27.004(a). T EX
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. C ODE A NN . § 27.004(a) (“A hearing on the motion under Section 27.003 must be set not later than the 60th day after th e 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 Back es, Misko was required to bring forth clear and specific evidence establishing a prima facie case for each essential element of her civil conspiracy claim. T EX
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. C ODE A NN . § 27.005(c). Backes argues Misko failed to bring forth any evidence to support a meeti ng 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 fi nd the picture of “the kid at the computer saying the bitch blocked me,” and the “vitriol” against he r 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. Back es replies any alleged agreem ent 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 ac tion; (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 objec t 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 underlyi ng 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. de nied). 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 Wo rth 2013, orig. proceeding). The crux of Misko’s argument is that becau se of the various postings between Backes and Johns prior to the Post, many of which are mean-spi rited, this Court should infer Backes and Johns agreed to create and publish the Post. Ch apter 27 requires more than an inference that there was a meeting of the minds between the two women. Rather, it requi res clear and specific evidence. See KTRK Television, Inc. , 409 S.W.3d at 689 (citing B LACK ’ S L AW D ICTIONARY 268, 1167 (8th ed. 2004)) (defining “clear” as “una mbiguous,” and “specific” as “explicit” or “relating to a particular named thing”). Th e evidence relied on by Misko does not meet this threshold. The “The Ramblings of a Crazy Bitch” photo w ith the words, “Did someone forget to put on their big girl panties?” and thei r attempts to find the picture of “the kid at the computer saying the bitch blocked me,” is not evidence of a mee ting 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 accom plished, which is the Post. 4

4 Misko argues Backes and Johns have “misca st” her civil conspiracy claim as being a conspiracy to publish the Post; however, Mi sko claims theirs was a conspiracy to defame her, which was “fur thered and accomplished by Johns’ M unchausen post.” Regardless of how Misko claims to have pleaded her conspiracy claim, she still has faile d to bring forth clear and spec ific evidence supporting an esse ntial 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 Mi sko 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 esta blish through clear and specific evidence a prima facie case that Johns and Backes agreed to de fame her; therefore, Misko failed to carry her burden under section 27.005(c). In reaching this conclusion, we reject Mi sko’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 o ccurred 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 delib erately destroyed evidence or ha s 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) ther e was a duty to preserve the evidence; (2) the alleged spoliator breached this duty; and (3) th e 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 pe rsonally and challenging the inte grity of her horse breeding program on the deleted thread. The thread also discussed whet her 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. Sh e “observed the close timing a nd quantity of these postings against me on the deleted thread and that they de scribed me as being unstable and with Backes stating that one of my mares might be HERDA positive.” Having considered this evidence, we concl ude Misko’s ability to present her conspiracy to commit libel claim has not been prejudiced by any destruction of eviden ce. No one testified Johns and Backes agreed to wr ite and publish the Post. Furt her, no one testified Misko’s daughter or her health were disc ussed in the deleted thread. Rather, the evidence shows the deleted thread discussed genetic horse testing and personal atta cks 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 ab ility 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 pres umption 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 revers e the trial court’s judgment and render judgment dismissing Misko’s counterclaim against Back es 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 di smiss 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 f ees and other expenses as aut horized under section 27.009(a). See T EX
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. C ODE A NN . § 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 appe llant Jane McCurley Backes d/b/a/ Backes Quarter Horses and RENDER judgment dismissing appe llees’ Karen Misko and Misko Quarter Horses, LLC’s civil conspiracy countercl aim 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 T EX
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. C ODE A NN . § 27.009(a). It is ORDERED that Jane McCurley Backes d/b/a/ Backes Quarter Horses recover her cost of this appeal from Karen Mi sko 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.