No. 06-13-00051-CV

In the Court of Appeals for the 

Sixth Judicial District at Texarkana, Texas 

WARREN WHISENHUNT, 

Appellant/Cross-Appellee, 

v.

 

MATTHEW LIPPINCOTT and CREG PARKS, 

Appellees/Cross-Appellants. 

On Appeal from the County Court at Law of Hopkins County, Texas

Cause No. CV41303 

 

APPELLANT/CROSS-APPELLEE’S BRIEF ON REMAND 

Farbod Farnia

State Bar No. 24078493

ffarnia@mccathernlaw.com

MCCATHERN, PLLC

3710 Rawlings, Suite 1600

Dallas, TX 75219

Phone: (214) 741-2662

Fax: (214) 741-4717

Appellant/Cross-Appellee

ACCEPTED

06-13-00051-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

8/3/2015 12:31:05 PM

DEBBIE AUTREY

CLERK

 RECEIVED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 8/3/2015 12:31:05 PM DEBBIE AUTREY Clerk
ii

RECORD REFERENCES

Throughout this Brief, references to the record and other documents 

on file with this Court will be cited as follows:

 Clerk’s Record – “CR [page no.]”

 Reporter’s Record – “RR [page no.]:[line no.]”

 Supplemental Reporter’s Record – “SRR [page no.]:[line no.]”

 Appellees’ Brief on Remand – “Remand Br., at [page no.]”

 Whisenhunt’s Appellant’s Brief – “App. Br., at [page no.]”

 Appellees’ Response Brief – “Resp. Br., at [page no.]”

 Whisenhunt’s previous Reply Brief – “Reply Br., at [page no.]”

 Cross-Appellants’ Brief – “Cross Br., at [page no.]”

 Whisenhunt’s Cross-Response Brief – “Cross Resp., at [page no.]”
iii

TABLE OF CONTENTS

Record References........................................................................................ii

Table of Contents........................................................................................iii

Index of Authorities......................................................................................v

Summary of the Argument............................................................................ 1

Argument and Authorities ............................................................................3

I. For the Purposes of the TCPA, Pleadings Are Evidence................3

II. To Determine Whether Whisenhunt Met his Prima Facie 

Burden, this Court Should Review the Facts in the Light 

Most Favorable to Whisenhunt......................................................7

III. Appellees Misstate the Elements of Defamation. ...........................8

IV. The TCPA’s Commercial-Speech Exemption Requires 

Proof of Only Two Elements........................................................ 13

A. The development (and awkwardness) of the 

commercial-speech exemption highlights the 

differences between Texas and California. ........................... 14

B. Not every element of the California commercialspeech exemption applies under the TCPA ......................... 17

1. First element: both exemptions require the 

defendant to be primarily engaged in the 

business of selling or leasing goods or services. ............ 19

2. Second element: both exemptions require a 

connection between the lawsuit and the 

defendant’s speech, but from there they 

diverge.........................................................................20
iv

3. Third element: the California exemption 

requires proof of the defendant’s mental state, 

but the TCPA exemption does not...............................25

4. Fourth element: both the California and the 

TCPA exemptions require proof of an intended 

audience, but they differ with respect to the 

scope of its applicability. ..............................................26

C. The TCPA commercial-speech exemption requires 

proof only of a commercial speaker and commercial 

speech..................................................................................32

V. The Trial Court Erred in Denying Whisenhunt’s Motion 

for Limited Discovery. ................................................................. 33

VI. This Court Should Remand to Allow Whisenhunt to 

Replead........................................................................................40

Conclusion and Prayer................................................................................45

Certificate of Compliance ...........................................................................46

Certificate of Service...................................................................................46
v

INDEX OF AUTHORITIES

STATUTES AND REGULATIONS

Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973) .............................. 15, 27, 37

Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935)........................................37

CAL. CIV. P. CODE § 425.17.........................................................................23

TEX CIV. PRAC. & REM. CODE § 27.001 ..................................................16, 17

TEX CIV. PRAC. & REM. CODE § 27.005 ....................................................... 16

TEX. CIV. PRAC. & REM. CODE § 27.004......................................................37

TEX. CIV. PRAC. & REM. CODE § 27.006.............................................. 6, 8, 34

TEX. CIV. PRAC. & REM. CODE § 27.010 .......................... 19, 23, 25, 29, 31, 32

TEX. CIV. PRAC. & REM. CODE § 73.005 ......................................................39

Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011) ...........................................15, 16

TEX. R.APP. P. 60.2 ................................................................................... 42

TEX. R. EVID. 101 ......................................................................................... 6

TEXAS SUPREME COURT CASES

Cardiac Perfusion Services, Inc. v. Hughes, 

436 S.W.3d 790 (Tex. 2014) ................................................................... 42

City of Dallas v. VSC, LLC, 

347 S.W.3d 231 (Tex. 2011).................................................................... 44

Dallas County Cmty. Coll. Dist. v. Bolton, 

185 S.W.3d 868 (Tex. 2005)....................................................................34
vi

Gray v. McFarland, 

29 Tex. 163 (1867) .................................................................................. 44

Hamrick v. Ward, 

446 S.W.3d 377 (Tex. 2014) ....................................................................43

Hancock v. Variyam, 

400 S.W.3d 59 (Tex. 2013)....................................................................... 9

Harrell v. Houston, 

66 Tex. 278, 17 S.W. 731 (1886).............................................................. 42

Iliff v. Iliff, 

339 S.W.3d 74 (Tex. 2011).................................................................34, 40

In re Alford Chevrolet-Geo, 

997 S.W.2d 173 (Tex. 1999).....................................................................34

In re Am. Home Assur. Co., 

88 S.W.3d 370 (Tex. App.—Texarkana 2002, no pet.)............................34

In re Doe 2, 

19 S.W.3d 278 (Tex. 2000)......................................................................43

In re Lipsky, 

460 S.W.3d 579 (Tex. 2015) .......................... 4, 7, 8, 9, 10, 11, 12, 13, 35, 41

Lippincott v. Whisenhunt, 

No. 13-0926, 2015 WL 1967025 (Tex. Apr. 24, 2015)............... 3, 24, 25, 31

Ludwig v. State, 

931 S.W.2d 239 (Tex. Crim. App. 1996) ..................................................27

Mission Consol. Indep. Sch. Dist. v. Garcia, 

372 S.W.3d 629 (Tex. 2012) ................................................................... 44

Morrow v. Shotwell, 

477 S.W.2d 538 (Tex. 1972).................................................................... 42
vii

State v. Shumake, 

199 S.W.3d 279 (Tex. 2006) ................................................................... 28

Stracener v. United Servs. Auto. Ass’n, 

777 S.W.2d 378 (Tex. 1989)...............................................................27, 28

Tex. Dep’t of Parks & Wildlife v. Miranda, 

133 S.W.3d 217 (Tex. 2004)...................................................................... 8

Texas Mut. Ins. Co. v. Ledbetter, 

251 S.W.3d 31 (Tex. 2008) ..................................................................... 44

Timpte Indus., Inc. v. Gish, 

286 S.W.3d 306 (Tex. 2009)................................................................... 44

Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. 

Vasquez-Arancibia, 

324 S.W.3d 544 (Tex. 2010)................................................................... 44

Valenzuela v. Aquino, 

853 S.W.2d 512, 514 (Tex. 1993)............................................................. 42

Walker v. Gutierrez, 

111 S.W.3d 56 (Tex. 2003).......................................................................33

WFAA-TV, Inc. v. McLemore, 

978 S.W.2d 568 (Tex. 1998) ..................................................................... 9

Yowell v. Piper Aircraft Corp., 

703 S.W.2d 630 (Tex. 1986) ..............................................................34, 40

TEXAS COURTS OF APPEALS CASES

Avila v. Larrea, 

394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied)...........................38
viii

Backes v. Misko, 

No. 05-14-00566-CV, 2015 WL 1138258 (Tex. App.—Dallas 

Mar. 13, 2015, no pet.)......................................................................... 5, 18

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Sers., Inc., 

441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. 

denied)....................................................................................................30

Bilbrey v. Williams, 

No. 02-13-00332-CV, 2015 WL 1120921 (Tex. App.—Fort 

Worth Mar. 12, 2015, no. pet. h.)..................................................... 4, 6, 35

Cheniere Energy, Inc. v. Lotfi, 

449 S.W.3d 210 (Tex. App.—Houston [1st Dist.] 2014, no pet.).............14

Cruz v. Van Sickle, 

452 S.W.3d 503 (Tex. App.—Dallas 2014, no pet. h.) .........................4, 28

Dial v. Wilke, 

127 S.W.2d 379 (Tex. Civ. App.—Amarillo 1939 writ ref’d)....................41

Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 

No. 14-12-00896-CV, 2013 WL 407029 (Tex. App.—Houston 

[14th Dist.] Jan. 24, 2013, no pet.) ...........................................................38

Fitzmaurice v. Jones, 

417 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 2013, no pet.)............ 8

In re Avila, 

No. 05-12-00094-CV, 2012 WL 215141 (Tex. App.—Dallas Jan. 

24, 2012, no pet.).....................................................................................38

In re Sierra Club, 

No. 08-12-00282-CV, 2012 WL 5949789 (Tex. App.—El Paso 

Nov. 28, 2012, no pet.)............................................................................38

Jennings v. WallBuilder Presentations, Inc. ex rel. Barton, 

378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. denied)...................38
ix

Kinney v. BCG Attorney Search, Inc., 

No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.—Austin 

Apr. 11, 2014, pet. denied)........................................................... 18, 23, 24

Klentzman v. Brady, 

312 S.W.3d 886 (Tex. App.—Houston [1st Dist.] 2009, no pet.)........11, 39

KSNG Architects, Inc. v. Beasley, 

109 S.W.3d 894 (Tex. App.—Dallas 2003, no pet.)................................ 42

Lipsky v. Range Prod. Co., 

No. 02-12-00098-CV, 2012 WL 3600014 (Tex. App.—Fort 

Worth Aug. 23, 2012, pet. denied) (dismissing appeal for want of 

jurisdiction).............................................................................................38

Martin v. Bravenec, 

No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.—San 

Antonio May 13, 2015, no. pet. h.).............................................................5

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 

416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet. 

denied)............................................................................... 8, 15, 18, 21, 24

Neyland v. Thompson, 

No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin 

Apr. 7, 2015, no pet.).................................................................................5

Park v. Escalera Ranch Owners’ Ass’n, Inc., 

457 S.W.3d 571 (Tex. App.—Austin 2015, no pet.) .................................43

Reyna v. Baldridge, 

No. 04-14-00740-CV, 2015 WL 4273265 (Tex. App.—San 

Antonio July 15, 2015, no. pet. h.)..............................................................5

Schimmel v. McGregor, 

438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014 pet. 

denied).............................................................................................. 18, 30
x

Serafine v. Blunt, 

No. 03-12-00726-CV, 2015 WL 3941219 (Tex. App.—Austin 

June 26, 2015, no. pet. h.)....................................................................4, 14

Texas Allergy, Asthma & Immunology Soc’y v. United Biologics, LLC, 

No. 03-12-00008-CV, 2012 WL 5494282 (Tex. App.—Austin 

Nov. 8, 2012, no pet.)..............................................................................38

United Copper Indus., Inc. v. Grissom, 

17 S.W.3d 797 (Tex. App.—Austin 2000, pet dism’d) .................35, 37, 40

Williams v. Bank One, Texas, N.A., 

15 S.W.3d 110 (Tex. App.—Waco 1999, no pet.).....................................33

FEDERAL CASES

Charalambopoulos v. Grammer, 

No. 3:14-CV-2424-D, 2015 WL 390664 (N.D. Tex. Jan. 29, 

2015) .......................................................................................................36

Lamons Gasket Co. v. Flexitallic L.P., 

9 F. Supp. 3d 709 (S.D. Tex. 2014).................................................... 18, 21

NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 

745 F.3d 742 (5th Cir. 2014).............................................................. 21, 22

Ohralik v. Ohio State Bar Ass’n, 

436 U.S. 447 (1978) ................................................................................. 31

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 

393 U.S. 503 (1969) ................................................................................. 17

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 

Council, Inc., 

425 U.S. 748 (1976) ................................................................................. 31
xi

OTHER STATE CASES

Brill Media Co., LLC v. TCW Group, Inc., 132 Cal. App. 4th 324, 33 

Cal. Rptr. 3d 371 (2005)...........................................................................30

Simpson Strong–Tie Co., Inc. v. Gore, 

230 P.3d 1117 (Cal. 2010)........................................15, 17, 18, 20, 21, 23, 25

SECONDARY SOURCES

BLACK’S LAW DICTIONARY (10th ed. 2014) .......................................... 12, 35
1

SUMMARY OF THE ARGUMENT

First, Whisenhunt will once again counter Appellees’ charge that his 

pleadings do not count as evidence. Last time he and Appellees were before 

this Court, this issue was unresolved in Texas. Now, however, there is ample 

guidance from other courts to add to the fact that the plain language of the 

TCPA requires courts to consider pleadings as evidence.

Second, Whisenhunt will clarify the standard of review by which this 

Court should review his evidence. Whisenhunt again asks this Court to adopt 

the standard of review applied by the First and Fourteenth Courts of Appeals 

and review the pleadings and evidence in the light most favorable to him.

Third, Whisenhunt will show that his interpretation of the commercialspeech exemption has been vindicated, and his burden to show that his claims 

are exempt from the TCPA’s protections is not as onerous as Appellees 

initially argued.

Fourth, Whisenhunt will show why the Trial Court erred in refusing his 

request for limited discovery. Specifically, Whisenhunt requested limited 

discovery, showed what issues he needed discovery for, and explained his 

good-cause basis for it. As such, the Trial Court’s refusal was an abuse of 
2

discretion, and this Court should remand with instructions to allow 

Whisenhunt to take limited discovery.

Finally, Whisenhunt will explain why remand is appropriate in light of 

recent rulings by the Texas Supreme Court. In Lipsky, the Court held that the 

TCPA establishes a pleading standard. That being the case, Whisenhunt was 

deprived of an opportunity to appropriately plead his case. Therefore, in the 

interest of justice, this Court should remand to allow Whisenhunt to replead.
3

ARGUMENT AND AUTHORITIES

On April 24, 2015, the Texas Supreme Court reversed this Court’s 

opinion that the TCPA requires speech to be publicly communicated.1It also 

held that Appellees established the applicability of the TCPA, and remanded 

the case to this Court to consider “among other matters, whether Whisenhunt 

met the prima facie burden the Act requires.”

2

Whisenhunt files this Brief to discuss developments in the law since this 

appeal was last before this Court. To the extent necessary, Whisenhunt 

incorporates herein his prior briefing, including his Appellant’s Brief, his 

Appellant’s Reply Brief, and his Cross-Appellee’s Response Brief.

I. FOR THE PURPOSES OF THE TCPA, PLEADINGS ARE EVIDENCE.

As they did in their initial briefing before this Court, Appellees again 

raise their argument that “pleadings should not be considered as evidence.”

3

They point out that the supreme court in Lipsky “did not explicitly hold that 

 

1 Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025, at *2 (Tex. Apr. 24, 2015).

2

Id.

3 Remand Br. 21.
4

pleadings can be considered as ‘evidence.’”

4 They cite Lipsky, along with a 

slew of other cases, where courts considered affidavits and other documents 

in deciding a TCPA motion.5 The problem is that these cases do not resolve 

the issue. Of course there are cases in which courts consider affidavits as 

evidence; the TCPA requires them to. The real question is whether there are 

courts that consider pleadings as evidence.

Contrary to Appellees’ position, several have expressly held that

pleadings are to be considered as evidence under the TCPA, including one

cited by Appellees. In Serafine v. Blunt, the Third Court of Appeals expressly 

held, “[u]nder Section 27.006 of the Act, the trial court may consider 

pleadings as evidence.”

6 Similarly, in Martin v. Bravenec, the Fourth Court of 

Appeals held, “unlike other types of cases where pleadings are not considered 

 

4

Id.

5

Id. at 21–24 (citing In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015); Serafine v. Blunt, No. 

03-12-00726-CV, 2015 WL 3941219, at *4 (Tex. App.—Austin June 26, 2015, no. pet. h.); 

Bilbrey v. Williams, No. 02-13-00332-CV, 2015 WL 1120921, at *12 (Tex. App.—Fort 

Worth Mar. 12, 2015, no. pet. h.); Cruz v. Van Sickle, 452 S.W.3d 503, 523 (Tex. App.—

Dallas 2014, no pet. h.)).

6 Serafine, 2015 WL 3941219, at *4.
5

evidence, [under Section 27.006], we may consider the [non-movant’s] 

pleadings as evidence in this case.”

7

Not only have courts expressly rejected Appellees’ position, they have 

applied it to the non-movant’s prima facie burden. For example, in Reyna, the 

Fourth Court of Appeals held that the non-movant presented clear and 

specific evidence regarding actual malice (to prove her defamation claim) in 

her “pleadings and affidavits.”

8 Further, in Neyland, the Third Court of 

Appeals held that the non-movant’s “pleadings and affidavit testimony 

establish that she performed property management services to the HOA.”

9

And in Backes, the Fifth Court of Appeals considered, without striking for lack 

of evidentiary support, the non-movant’s reliance on “her original petition”

that the movant was her competitor.10 Finally, in Bilbrey, the Second Court of 

 

7 Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL 2255139, at *7 (Tex. App.—San 

Antonio May 13, 2015, no. pet. h.).

8 Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL 4273265, at *6 (Tex. App.—San 

Antonio July 15, 2015, no. pet. h.).

9 Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155, at *4 (Tex. App.—Austin 

Apr. 7, 2015, no pet.).

10 Backes v. Misko, No. 05-14-00566-CV, 2015 WL 1138258, at *11 (Tex. App.—Dallas Mar. 

13, 2015, no pet.).
6

Appeals held that the plaintiff failed to carry his prima facie burden in part

because the context of the allegedly defamatory statements were provided in 

“neither [his] petition nor his affidavit.”

11

Moreover, Appellees wholly ignore the plain language of the TCPA. 

Under the heading “EVIDENCE,” the TCPA directs a trial court to consider 

“the pleadings and supporting and opposing affidavits stating the facts on 

which the liability or defense is based.”

12 In other words, the TCPA requires 

courts to consider the factual statements in pleadings as evidence. And there 

can be no real question that the Legislature has the power to modify the rules 

of evidence for determining TCPA motions.13

In sum, the plain language of the TCPA and the body of case law 

construing it require—clearly, expressly, and unequivocally—that courts 

treat the non-movant’s pleadings as evidence to determine whether he met his 

prima facie burden.

 

11 Bilbrey, 2015 WL 1120921, at *12.

12 TEX.CIV. PRAC. & REM. CODE § 27.006(a).

13 See TEX. R. EVID. 101(d) (“Despite these rules, a court must admit or exclude evidence 

if required to do so by . . . a federal or Texas statute.”)
7

II. TO DETERMINE WHETHER WHISENHUNT MET HIS PRIMA FACIE 

BURDEN, THIS COURT SHOULD REVIEW THE FACTS IN THE 

LIGHT MOST FAVORABLE TO WHISENHUNT.

Not only must this Court treat Whisenhunt’s pleadings as evidence, but 

it must also treat his factual allegations as true and resolve all doubts and 

inferences in his favor. Under the TCPA, once the movant meets his burden 

to invoke the TCPA’s protections, the burden shifts to the non-movant to 

“establish[] by clear and specific evidence a prima facie case for each essential 

element of the claim in question.”

14 Prima facie means “evidence sufficient as 

a matter of law to establish a given fact if it is not rebutted or contradicted.”

15

That is, prima facie refers to “the minimum quantum of evidence necessary 

to support a rational inference that the allegation of fact is true.”

16 The phrase 

“clear and specific evidence” refers to “the clarity and detail required to 

avoid dismissal.”

17

 

14 TEX.CIV. PRAC. & REM. CODE § 27.005(c).

15 Lipsky, 460 S.W.3d at 590.

16 Id. (internal quotations omitted).

17 Id.
8

As explained above, the TCPA allows the non-movant to make this 

showing with its pleadings and evidence.18 On appeal, this Court must “review 

the pleadings and evidence in a light favorable” to the non-movant.19 This 

means “tak[ing] as true all evidence favorable to the nonmovant” and 

“indulg[ing] every reasonable inference and resolv[ing] any doubts in the 

nonmovant’s favor.”

20

Whisenhunt respectfully requests that the Court use this standard of 

review in determining whether Whisenhunt established a prima facie case for 

each of his causes of action.

III. APPELLEES MISSTATE THE ELEMENTS OF DEFAMATION.

The elements of defamation are that: (1) the defendant 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, 

 

18 TEX.CIV. PRAC. & REM. CODE § 27.006(a).

19 Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80-81 (Tex. 

App.—Houston [1st Dist.] 2013, pet. denied) (citing Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 227 (Tex. 2004)); Fitzmaurice v. Jones, 417 S.W.3d 627, 632 

(Tex. App.—Houston [14th Dist.] 2013, no pet.) disapproved of on other grounds by 

Lipsky, 460 S.W.3d at 588.

20 Miranda, 133 S.W.3d at 228.
9

or negligence, if the plaintiff was a private individual, regarding the truth of 

the statement.21 There are three ways in which Appellees are wrong about the 

elements of defamation and Whisenhunt’s required proof.

First, Appellees place heavy reliance on this statement from the Lipsky

opinion: “In a defamation case that implicates the TCPA, pleadings and 

evidence that establishes the facts of when, where, and what was said, the 

defamatory nature of the statements, and how they damaged the plaintiff 

should be sufficient to resist a TCPA motion to dismiss.”

22 They claim that 

these facts are “required” under Lipsky.

23 In doing so, Appellees commit the 

classic fallacy of confusing what is sufficient with what is necessary. Just 

because making these showings might be sufficient does not mean that every 

plaintiff in every defamation case must make each showing. Rather, a court 

must determine whether a statement is defamatory “from the perspective of 

an ordinary reader in light of the surrounding circumstances.”

24

 

21 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

22 Lipsky, 460 S.W.3d at 591.

23 Remand Br. 19.

24 Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013).
10

Here, the facts in Whisenhunt’s pleadings and evidence, together with 

the inferences drawn from those facts, were more than sufficient to meet the 

low threshold of a prima facie burden. Indeed, Whisenhunt showed what

statements Appellees made.25 He showed to whom the statements were 

made.26 He showed when the statements were made.27 And he showed the 

defamatory nature of the statements.

28

Second, Appellees claim that Whisenhunt failed to prove that their 

allegedly defamatory statements were false.29 Courts often list the first 

element as requiring a “false statement of fact,” implying that the plaintiff 

must not only prove that the defendant published the statement, but also that 

it was false.30 However, if the case does not involve a media defendant, the 

 

25 CR 4–5; 40–45.

26 Id.

27 Id.

28 CR 6.

29 Remand Br. 11.

30 See Lipsky, 460 S.W.3d at 591.
11

burden is on the defendant to prove that the statement was true, rather than 

on the plaintiff to prove it was false.31

In any event, Whisenhunt established that these statements were false. 

Appellees claim that Whisenhunt failed to establish, for each defamatory 

statement, “how it was false.”

32 But that is not the burden. Even if he had the 

burden to prove falsity, Whisenhunt was not required to establish how the 

statements were false, but rather that they were false. Here, Whisenhunt 

stated that Appellees falsely accused him (of sexual harassment, fraud, 

incompetence, etc.), and went so far as to file false allegations with the Board 

of Nursing.33 In the absence contradictory or rebuttal evidence, these claims 

are the “minimum quantum of evidence needed to support a rational 

inference” that Appellees’ statements were false.34

 

31 Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

32 Remand Br. 20.

33 CR 5 (“Defendants falsely accused Whisenhunt . . . .”) (emphasis added); (“[Defendants 

went] so far as to file false allegations against Whisenhunt with the Texas State Board of 

Nursing”); (“The statements and representations made by Defendants about Whisenhunt 

were false . . . .”);

34 See Lipsky, 460 S.W.3d at 590.
12

Finally, Appellees spuriously argue that Whisenhunt did not show 

“how Whisenhunt was damaged” by their false accusations of sexual 

harassment, fraud, and incompetence. As an initial matter, the supreme court 

mentioned this factor in the context of “defamation” (i.e., defamation per 

quod), not defamation per se.

35 As the Court noted, “defamation per se refers 

to statements that are so obviously harmful that general damages may be 

presumed.”

36 It would make little sense then, for a court to find that a 

statement is defamatory per se, only then to require a plaintiff to show how 

the statement was defamatory. The very definition of “per se” demonstrates 

that no further explanation is needed.37

Here, Appellees’ statements were defamatory per se. There are two 

categories of per se defamation. The first includes “accusing someone of a 

crime, of having a foul or loathsome disease, or of engaging in serious sexual 

misconduct.”

38 The second includes statements that “adversely reflect on a 

 

35 Id. at 591.

36 Id. at 593 (emphasis added).

37 Per se, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Of, in, or by itself; standing alone, 

without reference to additional facts”).

38 Lipsky, 460 S.W.3d at 593.
13

person’s fitness to conduct his or her business or trade.”

39 Appellees’

accusations of sexually harassment and fraud fit squarely in the first category, 

and their accusations of incompetence fit squarely in the second. Because this 

case involves defamation per se, there is no need for Whisenhunt to show how 

he was defamed.

For these reasons, and the reasons stated in Whisenhunt’s prior briefs, 

Whisenhunt met his prima facie burden.

IV. THE TCPA’S COMMERCIAL-SPEECH EXEMPTION REQUIRES 

PROOF OF ONLY TWO ELEMENTS.

Regarding the commercial-speech exemption, Whisenhunt asks this 

Court to construe the plain language of the statute, and not add additional 

elements absent from the TCPAas other courts have done. Here, Whisenhunt 

will compare the TCPA’s commercial-speech exemption to California’s 

similar exemption, show what elements are and are not required in Texas, and 

explain why Texas courts have erred in blindly following California law on this 

issue.

 

39 See id.
14

A. The development (and awkwardness) of the commercialspeech exemption highlights the differences between Texas 

and California.

The TCPA is not a model of excellent drafting. Its various provisions 

have been called “awkward”

40 and difficult to navigate.41 The commercialspeech exemption is no different. To understand its awkwardness, one must 

review its evolution. At the time the TCPA was enacted, California was the 

only other state whose anti-SLAPP law contained a commercial-speech

exemption. That state’s exemption requires proof of four elements:

(1) the cause of action is against a person primarily engaged in 

the business of selling or leasing goods or services;

(2) the cause of action arises from a statement or conduct by 

that person consisting of representations of fact about that 

person’s or a business competitor’s business operations, goods, 

or services;

(3) the statement or conduct was made either for the purpose 

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

of, or commercial transactions in, the person’s goods or services 

or in the course of delivering the person’s goods or services; and

 

40 Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 219 (Tex. App.—Houston [1st Dist.] 2014, 

no pet.) (Jennings, J., concurring).

41 Serafine, 2015 WL 3941219, at *7 (Pemberton, J., concurring).
15

(4) the intended audience for the statement or conduct [is an 

actual or potential buyer or customer].42

The California exemption was the template of the TCPA exemption. Indeed, 

the first draft of the TCPA closely tracked the California language:

This chapter does not apply to [(1)] a legal action brought 

against a person primarily engaged in the business of selling or 

leasing goods or services, [(2)] if the statement or conduct from 

which the claim arises is a representation of fact [(3)] made for 

the purpose of promoting, securing, or completing the sale or 

lease of, or a commercial transaction in, the person’s goods or 

services, and [(4)] the intended audience is an actual or 

potential buyer or customer.43

But that language was rejected. Instead, the Legislature enacted this version:

This chapter 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 or a 

commercial transaction in which the intended audience is an 

actual or potential buyer or customer.44

 

42 Newspaper Holdings, 416 S.W.3d at 88 (citing Simpson Strong–Tie Co., Inc. v. Gore, 230 

P.3d 1117, 1129 (Cal. 2010))

43 See Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011) (filed Mar. 10, 2011) (numbers supplied 

to show similarities to the California exemption), available at http://www.legis.state.tx.us/

tlodocs/82R/billtext/html/HB02973I.htm (last visited Aug. 3, 2015).

44 See Acts 2011, 82nd Leg., R.S. Ch. 341 (H.B. 2973), § 2, eff. June 17, 2011, available at 

http://www.legis.state.tx.us/tlodocs/82R/billtext/html/HB02973F.HTM (last visited 

Aug. 3, 2015). In 2013, the TCPA was amended, the effects of which are discussed further 

below.
16

The awkwardness here involves the phrase “the statement or 

conduct.” What statement or conduct? The article “the” implies some 

previously mentioned statement or conduct. But that phrase is found nowhere 

else in the TCPA.45 Rather, it appears to be residual language left over from 

the first draft of the bill.46 If so, then it refers to the statement or conduct 

“from which the claim arises.”

47 The result is this strange double-use of 

“arise” language:

This chapter 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 (from which the 

legal action arises) arises out of the sale or lease of goods, 

services, or an insurance product or a commercial transaction in 

which the intended audience is an actual or potential buyer or 

customer.

Although awkward, this seems to be the correct approach. The TCPA is 

triggered when the legal action filed by the plaintiff “is based on, relates to, or 

is in response to” the exercise of one of three protected rights.48 All three of 

 

45 See generally TEX CIV. PRAC. & REM. CODE § 27.001 et seq.

46 See Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011).

47 Id.

48 TEX CIV. PRAC. & REM. CODE § 27.005(b).
17

those rights begins with a “communication.”

49 While the statutory definition 

of “communication” does not expressly include conduct, First Amendment 

jurisprudence has traditionally protected conduct-based communications.50

So it makes sense for the commercial-speech exemption to refer to the 

communication (i.e. “the statement or conduct”) that the legal action is based 

on, relates to, or is in response to (i.e. “from which the legal action arises”).

B. Not every element of the California commercial-speech 

exemption applies under the TCPA

As stated above, the California Supreme Court held in Gore that the 

exemption in that state required proof of four elements. The first element 

addresses the type of speaker needed.

51 The second element addresses three 

sub-elements: the nexus between the lawsuit and the speech, the nature of the 

speech, and the subject of the speech.52 The third element requires that the 

 

49 Id. § 27.001(2)–(4).

50 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969) (holding that the 

wearing of armbands is protected speech under the First Amendment).

51 Gore, 230 P.3d at 1129 (requiring that the defendant be “primarily engaged in the business 

of selling goods or services”).

52 Id. (requiring, as proof of nexus, nature, and subject respectively, that: (1) the cause of 

action arise out of the defendant’s speech or conduct; (2) that consist of representations of 

fact; (3) about the defendant’s or a competitor’s goods or services).
18

speech be self-serving.53 And the fourth element addresses the intended 

audience for the speech.54

One of the first Texas cases to consider the TCPA’s commercial-speech 

exemption was Newspaper Holdings. That case imported all four elements from 

Gore.

55 Other Texas courts have followed suit in applying the Gore elements.56

But this blind application of California law to the TCPA was inappropriate. 

To show why requires a side-by-side comparison highlighting the differences 

between the two exemptions:

Element California Texas

Type of speaker 

(i.e. defendant)

Defendant must be primarily 

engaged in the business of 

selling or leasing goods or 

services.

Same

 

53 Id. (requiring that the speech be made “for the purpose of obtaining approval for, 

promoting, or securing sales or leases of, or commercial transactions in, the person’s goods 

or services or in the course of delivering the person’s goods or services”).

54 Id. (requiring that the speech be addressed to “an actual or potential buyer or customer, 

or a person likely to repeat the statement to, or otherwise influence, an actual or potential 

buyer or customer”).

55 See Newspaper Holdings, 416 S.W.3d at 88–89.

56 See, e.g., Schimmel v. McGregor, 438 S.W.3d 847, 857 (Tex. App.—Houston [1st Dist.] 

2014 pet. denied); Lamons Gasket Co. v. Flexitallic L.P., 9 F. Supp. 3d 709, 711 (S.D. Tex. 

2014); Backes, 2015 WL 1138258, at *10; Kinney v. BCG Attorney Search, Inc., No. 03-12-

00579-CV, 2014 WL 1432012, at *6 (Tex. App.—Austin Apr. 11, 2014, pet. denied).
19

Nexus between 

speech and lawsuit,

and the nature, 

subject, and/or 

context of the 

defendant’s speech

Cause of action must arise 

from a statement or conduct 

that consists of representations 

of fact about the defendant’s 

or a competitor’s goods or 

services.

Legal action must arise from a 

statement or conduct that 

arises from the sale or lease of 

goods or services or an 

insurance product or a 

commercial transaction.57

Purpose of 

defendant’s speech

To obtain approval for, to 

promote, or to secure sales of 

defendant’s goods or services.

N/A

Intended audience 

for defendant’s 

speech

An actual or potential buyer or 

customer

Same, but only applies to 

commercial transactions

The following sections explain these differences in greater detail.

1. First element: both exemptions require the defendant to be 

primarily engaged in the business of selling or leasing goods or 

services.

There is no significant difference between the two exemptions with 

respect to the first element. Both exemptions require that the defendant be a 

commercial speaker. That is, the legal action must be “brought against a 

person primarily engaged in the business of selling or leasing goods or 

services.”

58

 

57 This double-use of the “arise from” language was explained supra, at 15–16.

58 See TEX.CIV. PRAC. & REM.CODE § 27.010(c); Gore, 230 P.3d at 1129.
20

2. Second element: both exemptions require a connection between 

the lawsuit and the defendant’s speech, but from there they 

diverge.

The second element is the most complex. Both exemptions require a 

connection between the defendant’s speech and the lawsuit. The California 

exemption requires that “the cause of action arise[] from a statement or 

conduct by [the defendant].”

59 And, as explained previously, the TCPA 

exemption’s awkward phrase, “the statement or conduct,” implies that the 

legal action must arise from the defendant’s speech or conduct.

But then the two exemptions diverge. While the California exemption 

requires proof of the nature and subject of the speech, the TCPA exemption 

requires proof of the context of the speech.

(a) The California exemption requires proof of the 

nature and subject of the speech.

Under the California exemption, the nature of the defendant’s 

statement or conduct must be “representations of fact” while the subject of 

the speech must be “[the defendant’s] or a business competitor’s business

 

59 Gore, 230 P.3d at 1129.
21

operations, goods, or services.”

60 Although some courts have imported this 

element into the TCPA’s exemption, none have applied it to the facts of the 

case.61 The Fifth Circuit Court of Appeals, however, has rejected the position 

that the TCPA’s commercial-speech exemption includes this element.62

In NCDR, the speech in question was an ad campaign by a law firm to 

secure potential clients alleging that a nationwide chain of dental clinics was 

performing unnecessary, and often harmful, procedures on children.63 The 

clinic sued, and the law firm moved to dismiss under the TCPA. In response, 

the clinics argued that the ads were commercial speech and thus exempt from 

the TCPA. The law firm, relying on the “similarly worded” California 

exemption, argued that its ads did not consist of representations of fact about 

its own or a competitor’s services.64 But the Fifth Circuit rejected this 

argument. It held that the law firm “neglects the fact that the California 

 

60 Id.

61 Lamons Gasket, 9 F. Supp. 3d at 711; Newspaper Holdings, 416 S.W.3d at 88. 

62 NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 755 (5th Cir. 2014).

63 Id. at 745.

64 Id. at 755.
22

Supreme Court’s holding rested on a clause in the California statute that is 

not present in Texas’s anti-SLAPP statute.”

65 Specifically, there is no 

requirement under the TCPA that the speech contain “representations of fact

about that person’s or a business competitor’s business operations, goods, or 

services.”

66 Thus, according to NCDR, the TCPA’s commercial-speech 

exemption does not require proof of the second element announced by the 

California Supreme Court and recited in Newspaper Holdings. 

The NCDR court’s holding is bolstered by the legislative history of the 

TCPA. As noted above, the original TCPA bill closely tracked the language of 

California’s exemption, but that version was rejected, and the current version, 

which contains no similar language, was enacted in its stead.67 This legislative 

history, combined with the plain language of the TCPA, leaves no room for 

doubt. The TCPA’s commercial-speech exemption does not require proof 

that the defendant’s statements or conduct “consist[ed] of representations of 

 

65 Id.

66 Id.

67 See supra, at 14–15.
23

fact about [the defendant’s] or a business competitor’s business operations, 

goods, or services.”

68

(b) The TCPA exemption requires proof of the context

of the speech.

Rather than requiring proof of what the defendant said, the TCPA 

requires proof of the context in which she said it.69 By its clear terms, the 

TCPA’s commercial-speech exemption requires that the defendant’s speech 

or conduct arise “out of the sale or lease of goods, services, or an insurance 

product or a commercial transaction.”

70

Because of the similarity between this language and the purpose element 

of the California exemption, at least one court has held that the two are the 

same.71 In Kinney, the plaintiff, a recruiting firm, sued a former employee for 

 

68 Compare TEX.CIV. PRAC. & REM. CODE § 27.010(b), with Gore, 230 P.3d at 1129.

69 Actually, the California anti-SLAPP statute has a context provision too. As an alternative 

to the intended-audience element, a California plaintiff can prove that “the statement or 

conduct arose out of or within the context of a regulatory approval process, proceeding, or 

investigation” with one state-specific exception. CAL. CIV. P. CODE § 425.17(c)(2). This 

language bolsters Whisenhunt’s interpretation that the “arises out of” language is a 

context-based requirement. 

70 TEX.CIV. PRAC. & REM. CODE § 27.010(b).

71 Kinney, 2014 WL 1432012, at *6.
24

posting allegedly disparaging remarks about it on the internet.72 The employee 

moved to dismiss under the TCPA, but the recruiting firm argued that the 

commercial-speech exemption applies.73 The Third Court of Appeals noted: 

Section 27.010(b) thus provides, in relevant part, that a 

statement is exempt from the TCPA if the action is against a 

person primarily engaged in selling services and the statement 

arises from the sale of services. This provision has been 

construed to mean that for the exemption to apply, the 

statement must be made for the purpose of securing sales in 

the goods or services of the person making the statement.74

Thus the court equated “arises out of” from the TCPA exemption with “for 

the purpose of” from the California exemption. 

The Kinney court went too far. As the supreme court explained in 

reversing and remanding this case, the primary goal of statutory construction 

is “to give effect to the Legislature’s intent, which requires us to first look to 

the statute’s plain language.”

75 The Court went on to hold that the TCPA 

does not require speech to be publicly communicated, because the plain 

 

72 Id. at *1.

73 Id. at *6.

74 Id. (citing Newspaper Holdings, 416 S.W.3d at 88–89).

75 Lippincott, 2015 WL 1967025, at *1.
25

language of the statute contains no such requirement. “Had the Legislature 

intended to limit the Act to publicly communicated speech, it could have 

easily added language to that effect.”

76

The same goes for the Kinney decision. The plain language of the 

TCPA’s commercial-speech exemption states that the statement or conduct 

must “arise out of” the sale or lease of goods.77 Had the Legislature intended 

to include a state-of-mind requirement, it could have easily done so.78

3. Third element: the California exemption requires proof of the 

defendant’s mental state, but the TCPA exemption does not. 

This element was discussed in the immediately preceding section. The 

third element under the California exemption requires that the defendant’s 

speech be self-serving.79 There is no such purpose requirement in the TCPA 

exemption.

 

76 Id. at *2.

77 TEX.CIV. PRAC. & REM. CODE § 27.010(b).

78 See Lippincott, 2015 WL 1967025, at *2.

79 Gore, 230 P.3d at 1129. 
26

4. Fourth element: both the California and the TCPA exemptions 

require proof of an intended audience, but they differ with 

respect to the scope of its applicability.

The intended-audience element is found in both statutes. But there are 

two issues about its scope. First, the intended-audience prong of the TCPA 

exemption plainly applies only to speech or conduct that arises from “a 

commercial transaction.” Second, courts have erred in holding that it applies 

only to speech aimed at the defendant’s customers.

(a) Under the Texas commercial-speech exemption, 

the intended-audience prong applies only to 

statements or conduct that arises from commercial 

transactions.

Whisenhunt explained in his original briefing before this Court that the 

California exemption uses the conjunctive (all four elements must be met), 

while the Texas exemption uses the disjunctive (either element may be met).80

This matters primarily for the intended-audience element of the exemption. 

The TCPA, as originally enacted, exempted commercial speech by a 

commercial speaker if the speech arose out of:

 

80 Reply Br., at 22–23.
27

[T]he sale or lease of goods, services, or an insurance product or 

a commercial transaction in which the intended audience is an 

actual or potential buyer or customer.81

The question is: which provisions are modified by the clause, “in which the 

intended audience is an actual or potential buyer or customer”? There are two 

possibilities. Either the intended-audience clause modifies only “a commercial 

transaction” or it modifies both (1) a commercial transaction and (2) the sale 

or lease of goods, services, or an insurance product. For three reasons, 

Whisenhunt maintains that the clause modifies only commercial transactions.

First, Whisenhunt’s interpretation is favored by the last-antecedent 

rule. The last-antecedent rule states that “a qualifying phrase . . . modif[ies] 

the words or clause immediately preceding it.”

82 The way to get a qualifying 

phrase to modify multiple preceding words or clauses, there should be a 

comma between the modifying clause and the last antecedent.83 Of course, the 

 

81 Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, eff. June 17, 2011.

82 Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 383 (Tex. 1989). 

83 See Ludwig v. State, 931 S.W.2d 239, 241 (Tex. Crim. App. 1996) (“Generally, the 

presence of a comma separating a modifying clause in a statute from the clause immediately 

preceding is an indication that the modifying clause was intended to modify all the 

preceding clauses and not only the last antecedent one).
28

last-antecedent rule is “neither controlling nor inflexible.”

84 Rather, it “must 

give way when there are indications that [it is] inapplicable.”

85 But here, there 

are two other indications that support Whisenhunt’s reading.

Second, Whisenhunt’s interpretation is favored by the rule against 

surplusage. “In construing a statute, we give effect to all its words and, if 

possible, do not treat any statutory language as mere surplusage.”

86 Here, 

however, commercial transactions include sales and leases, so to hold that the 

intended-audience element applies to sales and leases creates a redundancy. As 

an analogy, assume a statute exempts from subsidies “apples, oranges, or 

fruits that do not contain antioxidants.” Does the statute exempt all apples or 

only apples that lack antioxidants? If the latter, then the inclusion of apples is 

redundant. The statute could simply exempt “all fruits that do not contain 

antioxidants.” Similarly, had the Legislature wanted the intended-audience

element to apply to sales or leases, it should have left those words out.

 

84 Cruz, 452 S.W.3d at 523.

85 Stracener, 777 S.W.2d at 383.

86 State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006).
29

Finally, the 2013 amendments to the commercial-speech exemption 

show more clearly that intended-audience element applies only to commercial 

transactions. Thus far, Whisenhunt has been quoting from the version of the 

exemption that applied at the time Appellees filed their motion. But later that 

year, the exemption was amended (to add the underlined phrase) as follows:

This chapter 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.87

Notably, the Legislature did not add a comma after “commercial transaction”

but did add one after “insurance product” and “insurance services.” The 

addition of the latter phrase, set off by commas, enhances the clarity of the 

exemption. Now, there are three clearly distinct categories, and the effect of 

the last-antecedent rule is more marked.

For these reasons, the intended-audience element under the TCPA 

applies only to commercial transactions.

 

87 TEX.CIV. PRAC. & REM. CODE § 27.010(b).
30

(b) Under both exemptions, the intended audience can 

be the potential buyers or customers of the plaintiff 

or the defendant.

At least two Texas courts have held that the intended audience must be 

the actual or potential buyers or customers of the defendant, not the plaintiff.

88

The California commercial-speech exemption, however, does not contain this 

requirement.89 As one California court noted:

[The commercial-speech exemption] does not require the 

potential purchaser be a “buyer or customer” of the defendant. 

There are no legislative committee reports which suggest that 

the potential purchaser be a “buyer or customer” of the 

defendant. Commercial speech directed at any “buyer or 

customer” including that of a plaintiff is within the scope of [the 

exemption. The language of [the exemption] does not require 

that the customer or buyer be one entering into a commercial 

relationship with the defendant.

90

 

88 Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 354 

(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding the exemption does not apply 

because the defendant’s business ratings were aimed at the public at large (i.e. plaintiff’s 

potential customers) rather than business who would potentially buy services from the 

ratings company); Schimmel, 438 S.W.3d at 858 (holding that lawyer’s statements were not 

commercial speech because they were aimed at the City of Galveston, which was plaintiff’s 

potential business partner not the lawyer’s). 

89 Brill Media Co., LLC v. TCW Group, Inc., 132 Cal. App. 4th 324, 342, 33 Cal. Rptr. 3d 

371, 384 (2005) disapproved of on other grounds by Gore, 230 P.3d at 1117.

90 Id.
31

The same is true of the TCPA’s expemtion. There is no express language that 

prohibits its application to buyers or customers of the plaintiff.91 Further, 

Whisenhunt could find no language in the legislative history to suggest such a 

reading. “Had the Legislature intended to limit the [exemption] to 

[defendant’s potential customers], it could have easily added language to that 

effect.”

92

It is not surprising that the Legislature included no such limitation—it 

would make no sense to differentiate them. Under the First Amendment, 

commercial speech is afforded less constitutional protection than other types 

of speech.93 But it is still protected to some extent, because consumers have 

an interest in the “free flow of commercial information.”

94 Certainly, 

advertisements to one’s own potential customers constitute commercial 

speech.95 But speech about someone else’s product must similarly invoke “the 

 

91 See TEX.CIV. PRAC. & REM.CODE § 27.010(b).

92 See Lippincott, 2015 WL 1967025, at *2.

93 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

94 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 

764 (1976).

95 See id.
32

free flow of commercial information.” Such speech is just as “commercial”

as speech about one’s own.

C. The TCPA commercial-speech exemption requires proof 

only of a commercial speaker and commercial speech.

Once all the superfluous California elements are stripped away, the 

elements of the TCPA commercial-speech exemption are exposed. As 

Whisenhunt stated in his original briefing,96 there are two elements. The 

TCPA does not apply to a legal action if:

1. The defendant is primarily engaged in the business of selling 

or leasing goods or services; and

2. The defendant’s statement or conduct (on which the legal 

action is based) arises out of:

a. the sale or lease of goods, services or an insurance 

product,

b. insurance services, or

c. a commercial transaction in which the intended audience 

is an actual or potential buyer or customer.97

 

96 See Reply Br., at 21.

97 See TEX.CIV. PRAC. & REM.CODE § 27.010(b).
33

Whisenhunt rests on his prior briefing for the application of this provision to 

the facts of this case.

V. THE TRIAL COURT ERRED IN DENYING WHISENHUNT’S 

MOTION FOR LIMITED DISCOVERY.

Should this Court decide that Whisenhunt has not met his prima facie 

burden and further holds that the commercial-speech exemption does not 

apply, Whisenhunt respectfully requests that this Court remand the case to 

allow him to take limited discovery. Here, Whisenhunt made both a written 

and oral request for limited discovery under Section 27.006(b).98 The Trial 

Court ruled on Appellees’ motion without resolving these requests.99 As such, 

the Trial Court implicitly denied the request for limited discovery.100 This 

Court should reverse that denial.

 

98 CR 37; RR 44.

99 CR 49–50.

100 See Walker v. Gutierrez, 111 S.W.3d 56, 60 (Tex. 2003) (“While the trial court did not 

explicitly rule on the [plaintiffs’] request for a grace period under section 13.01(g), we agree 

with the court of appeals that, by granting the motion to dismiss, the trial court implicitly 

denied the motion seeking a grace period.”); Williams v. Bank One, Texas, N.A., 15 S.W.3d 

110, 114 (Tex. App.—Waco 1999, no pet.) (holding that trial court implicitly denied a 

motion to continue a summary judgment hearing by granting summary judgment).
34

Section 27.006(b) provides: “On a motion by a party or on the court’s 

own motion and on a showing of good cause, the court may allow specified and 

limited discovery relevant to the motion.”

101 Because the statute uses the 

word “may,” the standard of review is abuse of discretion.102 Ordinarily, a trial 

court has broad discretion over discovery matters.103 However, a trial court 

“can abuse its discretion by acting unreasonably.”

104 Further, the trial court 

“is not vested with unlimited discretion, and is required to exercise a sound 

and legal discretion within the limits created by the circumstances of a 

particular case.”

105 For example, reversal is appropriate when “there has been 

a disregard of the rights of a party.”

106 Additionally, “[b]asic due process 

requires that when a decision maker is called upon to make a decision 

 

101 TEX.CIV. PRAC. & REM. CODE § 27.006(b).

102 Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 873 (Tex. 2005).

103 In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999).

104 In re Am. Home Assur. Co., 88 S.W.3d 370, 373 (Tex. App.—Texarkana 2002, no pet.).

105 Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011).

106 Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).
35

grounded on evidence, the parties involved should be provided fair notice and 

a meaningful opportunity to present their evidence.”

107

The TCPA does not define “good cause,” so its technical or plainmeaning definition applies.108 Good cause is generally defined as “the burden 

placed on a litigant (usually by court rule or order) to show why a request 

should be granted or an action excused.”

109 Texas courts have not arrived at a 

uniform standard for making the good-cause showing. In Bilbrey, the court 

held that the plaintiff did not meet the standard because he failed to state the 

purpose for the discovery he sought.110 Conversely, in Charalambopoulos v. 

Grammer, the court held that the plaintiff met the good-cause standard 

because he “sought discovery of evidence that is effectively within the 

exclusive control of [the defendant] and/or her agents, and this evidence may 

 

107 United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 (Tex. App.—Austin 2000, pet 

dism’d) (emphasis added).

108 See Lipsky, 460 S.W.3d at 590 (“Words and phrases that are not defined by statute and 

that have not acquired a special or technical meaning are typically given their plain or 

common meaning.”).

109 Cause, BLACK’S LAW DICTIONARY (10th ed. 2014).

110 Bilbrey, 2015 WL 1120921, at *15.
36

enable him to establish by clear and specific evidence a prima facie case as to 

the remaining grounds for his defamation claims.”

111

Here, Whisenhunt’s request for limited discovery should have been 

granted for several reasons. First, Whisenhunt stated his purpose for seeking 

additional discovery—if the trial court were inclined to hold that he failed to 

meet his prima facie burden, he should be allowed limited discovery to make 

that showing.112 Second, he pointed out the specific discovery he needed.113

And third, Whisenhunt showed good cause for seeking limited discovery. He 

explained that he needed limited discovery because he believed he could rely 

on his pleadings for proof and that there had not been adequate time to 

discover any additional facts necessary to make the showing.114

 

111 Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2015 WL 390664, at *19 (N.D. 

Tex. Jan. 29, 2015).

112 RR 44.

113 RR 28 (explaining the need for discovery on damages); RR 31–32 (explaining that 

Whisenhunt needed discovery to prove: (1) to whom the defamatory statements were; and 

(2) which surgeons did not want to work with Whisenhunt as a result of Appellees’ 

accusations).

114 Id.
37

It is indisputable that Whisenhunt was deprived of a “meaningful 

opportunity” to present his prima facie evidence.115 The short history of the 

TCPA itself bears this out. As originally enacted, the TCPA provided that a 

party may request limited discovery.116 But the court had no discretion to 

continue the hearing on the motion to dismiss—it had to be held within 30 

days.117 In 2013, the Legislature amended the TCPA to allow more time.118 As 

amended, a hearing has to be held within 60 days, and if the request for 

additional discovery is granted, the hearing can be held as late as 120 days after 

the motion isserved.

119 Thus, even the Legislature has recognized that 30 days 

is not enough time to respond to a TCPA motion, especially if discovery is 

needed to meet the prima facie burden.

 

115 See Grissom, 17 S.W.3d at 805.

116 Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, eff. June 17, 2011.

117 Id.

118 See Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), § 1, eff. June 14, 2013, available at 

http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB02935F.HTM (last visited 

Aug. 3, 2015).

119 See TEX.CIV. PRAC. & REM.CODE § 27.004(a), (c).
38

Here, Whisenhunt had just two weeks to respond to Appellees’

motion.120 Further, at the time of the hearing, there were seven appellate cases 

citing the TCPA, but six of them did not reach the merits of the TCPA motion 

to dismiss.121 The only one that did was Avila v. Larrea, which involved a 

media defendant and thus a different set of standards.

122 For example, the 

Avila court held that the plaintiff had the burden to prove falsity.

123 It is 

unclear from the opinion whether the parties argued the truth/falsity burden 

 

120 CR 25 (showing date of service of motion); RR 1 (showing date of hearing).

121 Jennings v. WallBuilder Presentations, Inc. ex rel. Barton, 378 S.W.3d 519, 529 (Tex. 

App.—Fort Worth 2012, pet. denied) (dismissing appeal for want of jurisdiction); Direct 

Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-CV, 2013 WL 

407029, at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (denying a motion 

to dismiss for want of jurisdiction); In re Sierra Club, No. 08-12-00282-CV, 2012 WL 

5949789, at *1 (Tex. App.—El Paso Nov. 28, 2012, no pet.) (denying, without opinion, a 

mandamus petition from a TCPA discovery order); Texas Allergy, Asthma & Immunology 

Soc’y v. United Biologics, LLC, No. 03-12-00008-CV, 2012 WL 5494282, at *1 (Tex. 

App.—Austin Nov. 8, 2012, no pet.) (granting a request for additional briefing); Lipsky v. 

Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex. App.—Fort Worth 

Aug. 23, 2012, pet. denied) (dismissing appeal for want of jurisdiction); In re Avila, No. 05-

12-00094-CV, 2012 WL 215141, at *1 (Tex. App.—Dallas Jan. 24, 2012, no pet.) (denying 

a mandamus petition from a TCPA discovery order as premature).

122 Avila v. Larrea, 394 S.W.3d 646, 657 (Tex. App.—Dallas 2012, pet. denied) (explaining 

that media defendants “can defeat a defamation cause of action by establishing the 

‘substantial truth’ of the broadcast”); id. at 659 (explaining that a media defendant can 

defeat a defamation claim by proving that it was merely reporting third-party allegations 

and the content is accurately reported, even if the underlying statement was false).

123 Id. at 657.
39

or whether the court simply assumed it. Nevertheless, the court was correct 

that the burden to prove falsity was on the plaintiff, because case involved a 

media defendant.124 Thus the one case on which Whisenhunt could rely was 

inapplicable.

So Whisenhunt had two weeks to respond to Appellees’ TCPA motion 

and virtually no guidance regarding his burden of proof. He explained to the 

Trial Court that his pleadings and evidence established each element of his 

causes of action.

125 But he also explained to the court that there had not been 

enough time to conduct discovery.126 And he expressly requested additional 

time to conduct discovery.127 This request was implicitly denied, with no 

analysis or explanation as to why, when the Court ruled on Appellees’ motion 

to dismiss about a month later.

128

 

124 See TEX.CIV. PRAC. & REM.CODE § 73.005 (establishing truth as an affirmative defense 

to libel); Klentzman, 312 S.W.3d at 898 (explaining that at common law, falsity was 

presumed and truth was an affirmative defense, but in cases involving media defendants 

and matters of public concern, the First Amendment shifts the burden to the plaintiff to 

prove falsity).

125 CR 30–36; RR 32–34.

126 RR 28, 32.

127 RR 44.

128 CR 49–50.
40

Under the “circumstances of [this] particular case,” the Trial Court’s 

denial of Whisenhunt’s request to take limited discovery was a “disregard of 

[Whisenhunt’s] rights.”

129 Specifically, the denial deprived Whisenhunt of 

any “meaningful opportunity” to present his prima facie case.130 As such, the 

Trial Court abused its discretion and should be reversed. In the event this 

Court finds that Whisenhunt did not meet his prima facie burden and this case 

does not fall within the commercial-speech exemption, Whisenhunt praysthat 

this Court reverse the Trial Court’s denial of his request for limited discovery 

and remand the case back to the Trial Court with instructions to allow 

Whisenhunt to conduct the limited discovery he sought.

VI. THIS COURT SHOULD REMAND TO ALLOW WHISENHUNT TO 

REPLEAD.

In Lipsky, the supreme court held that the TCPA creates a pleading 

standard. The Court noted that while ordinarily, fair-notice pleading is

sufficient, the TCPA requires more: “mere notice pleading—that is, general 

 

129 Iliff, 339 S.W.3d at 81; Yowell, 703 S.W.2d at 635.

130 Grissom, 17 S.W.3d at 805.
41

allegations that merely recite the elements of a cause of action—will not 

suffice.”

131

This presents an obvious conundrum. Does the heightened pleading 

standard attach when the plaintiff files the lawsuit or does it attach when the 

defendant files a TCPA motion to dismiss? If it attaches when the lawsuit is 

filed, then the plaintiff would need to anticipate a TCPA motion and plead 

accordingly. But this sort of preemptory pleading has never been required in 

Texas.132 Thus the heightened pleading burden must attach when the 

defendant invokes the TCPA by filing a motion to dismiss. But that too poses 

a problem. If the plaintiff fails to anticipate the TCPA motion, dismissal is 

certain in light of Lipsky. That is, a defendant could secure dismissal by merely 

showing that the plaintiff failed to meet the Lipsky pleading standard.

133

 

131 Lipsky, 460 S.W.3d at 590–91.

132 Cf. Dial v. Wilke, 127 S.W.2d 379, 384 (Tex. Civ. App.—Amarillo 1939 writ ref’d)

(holding that the plaintiff does not have to plead that the defendant is a non-subscriber to 

workers’ compensation laws until the defendant raises prohibited defenses, because, at the 

time the plaintiff filed his petition, “he could not anticipate what defenses the appellee 

would present.”).

133 See Lipsky, 460 S.W.3d at 591 (holding that to avoid dismissal, a plaintiff must plead 

“enough detail to show the factual basis for its claim”).
42

The only way around this conundrum is to allow the plaintiff to amend 

his pleading once the defendant files the TCPA motion and the pleading 

deficiency is illuminated. The opportunity to cure defective pleadings has 

been enshrined in Texas law for at least a century.134 And as the Fifth Court of 

Appeals has pointed out, “Texas law does not favor dismissal on pleadings, 

death-penalty sanctions, or hearings without notice. It does favor liberal 

amendment of pleadings and affording litigants the opportunity to cure 

defects in pleadings whenever possible.”

135

Moreover, both the Texas Supreme Court and this Court may remand 

a case to the trial court in the interest of justice.136 Texas courts have applied 

this rule to circumstances where the law was changed while the case was on 

appeal and where the applicable law was unsettled at the time of trial.137 Courts 

 

134 See Harrell v. Houston, 66 Tex. 278, 281, 17 S.W. 731, 732 (1886) (holding that where 

pleadings are “prolix and confused” a trial court should “require the parties to replead”).

135 KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex. App.—Dallas 2003, no pet.).

136 TEX. R. APP. P. 60.2(f); Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex. 1972) (holding 

that former Civil Rule 505, the predecessor to Appellate Rule 60.2, applies to the courts of 

appeals).

137 Cardiac Perfusion Services, Inc. v. Hughes, 436 S.W.3d 790, 792 (Tex. 2014) (remanding 

in the interests of justice where plaintiff relied on precedent that was overruled); Valenzuela 

v. Aquino, 853 S.W.2d 512, 514 (Tex. 1993) (same). 
43

have applied the rule where justice required an opportunity to replead,138 a 

new hearing,

139 or a new trial.140 Further, remand in the interest of justice “is 

particularly well-suited to situations . . . where courts must apply the 

requirements of a unique or novel statutory scheme.”

141

In the event that this Court disagrees that Whisenhunt met his prima 

facie burden, Whisenhunt respectfully requests that this Court remand this 

case to provide him an opportunity to replead his causes of action in the 

interests of justice. When Whisenhunt filed his petition, he had no reason to 

know that the Legislature had revoked fair-notice pleading for his causes of 

action. Fair-notice pleading is a standard that had been at the heart of Texas 

 

138 Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571, 603 (Tex. App.—Austin 

2015, no pet.).

139 In re Doe 2, 19 S.W.3d 278, 283 (Tex. 2000).

140 Hamrick v. Ward, 446 S.W.3d 377, 385 (Tex. 2014).

141 In re Doe 2, 19 S.W.3d at 283.
44

jurisprudence for a century and a half,

142 and upheld by the Texas Supreme 

Court at least five times in as many years before he filed his lawsuit.

143

This Court should remand this case in the interests of justice. The new 

pleading standard was adopted during the pendency of Whisenhunt’s appeal. 

And the new pleading standard was derived from a “unique or novel statutory 

scheme.” In light of the unique procedural posture of this case, if this Court 

finds that Whisenhunt’s pleadings do not satisfy the standard announced in 

Lipsky, it should, in the interest of justice, remand to the trial court to allow 

Whisenhunt to replead with the required factual specificity.

 

142 Gray v. McFarland, 29 Tex. 163, 166 (1867) (“The object of all pleading is to put the 

opposite party upon fair notice of the facts relied on as the cause of action or the ground of 

the defense.”).

143 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 648 (Tex. 2012) (holding that 

the plaintiff’s pleadings met the fair-notice standard); City of Dallas v. VSC, LLC, 347 

S.W.3d 231, 248 (Tex. 2011) (same); Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of 

Arancibia ex rel. Vasquez-Arancibia, 324 S.W.3d 544, 552 (Tex. 2010) (noting that 

“pleadings must give fair notice of a claim”); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 

311 (Tex. 2009) (noting similarities between summary judgment standard and fair-notice 

pleading standard); Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008) (noting 

that fair-notice standard requires pleadings that allow the opposing party to ascertain “the 

nature, basic issues, and the type of evidence that might be relevant to the controversy”).
45

CONCLUSION AND PRAYER

For the foregoing reasons, Whisenhunt respectfully requests that this 

Court (1) affirm as to the non-dismissal of his defamation claim but reverse as 

to the dismissal of his other claims; or (2) remand to take limited discovery or 

in the interest of justice. Whisenhunt further prays for all other relief, at law 

or in equity, to which he shows himself justly entitled.

Respectfully Submitted,

/s/ Farbod Farnia

Farbod Farnia

State Bar No. 24078493

ffarnia@mccathernlaw.com

H. Arnold Shokouhi

State Bar No. 24056315

ashokouhi@mccathernlaw.com

Ty M. Sheaks

State Bar No. 24042416

tsheaks@mccathernlaw.com

Stephanie M. Almeter

State Bar No. 24078141

salmeter@mccathernlaw.com

MCCATHERN, PLLC

Regency Plaza

3710 Rawlins, Suite 1600

Dallas, Texas 75219

(214) 741-2662 – Phone

(214) 741-4717 – Fax

Attorneys for Appellant
46

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this 

Brief contains 8,824 words.

/s/ Farbod Farnia

Farbod Farnia

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing brief was served on the following

counsel and parties in the manner indicated on August 3, 2015. 

/s/ Farbod Farnia

Farbod Farnia