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




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00566-CV

   JANE MCCURLEY BACKES D/B/A BACKES QUARTER HORSES AND TRACY
                         JOHNS, Appellants
                                V.
        KAREN MISKO AND MISKO QUARTER HORSES, LLC, Appellees

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 429-01844-2013

                                          OPINION
                            Before Justices Bridges, Lang, and Evans
                                   Opinion by Justice Bridges
       Appellant Jane McCurley Backes d/b/a Backes Quarter Horses (“Backes”) sued appellees

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

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

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

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

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

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

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

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

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

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

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

                                         Background

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

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

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

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

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

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

related to her.

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

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

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

disorder called Reflex Neurovascular Dystrophy.

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

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

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

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

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

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

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

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

why “. . . would [you] want to discourage buyers from checking with friends and/or trainers prior


                                              –2–
to purchasing?” Misko later clarified she would never discourage consulting with friends or

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

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

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

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

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

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

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

concept directed to support a particular breeder’s ideas.

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

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

said to Johns:

                 You have learned a great deal since 2002 from being bright,
                 diligent, and having a great mentor, Tracy. I love your mind, work
                 ethic, and outstanding care for your horses…you are impressive to
                 me. Therefore, I simply want you to understand that I do like and
                 respect you, but you and [Backes] do need to communicate on this
                 wall with the proper facts concerning me, ok? . . . I am very happy
                 to continue the discussion with you about this question but
                 bringing in hidden agendas is a conflict I will not tolerate when
                 you do not have many or all of the facts, whatsoever.

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

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

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

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

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

faces.” Misko’s comment to Backes continued:

                 Seriously? If a person would review both of your statements, about
                 so many subjects on my wall, do we all go back to Jr. High? I think
                                                –3–
               that tones are confused on the computer but patterns become
               crystal clear. We are acquaintances which is different than
               friends…we do not spend time together nor do we agree about
               choices regarding trainers. I respect you as a Mom and love what
               you have created with Audrey Grace’s memory ... it is so, so
               wonderful. :) I respect you as a fellow breeder and have always
               told folks to go over and check out your horses. I appreciated the
               care that you provided for my mares ... it was great. Still, we do
               not spend time together nor talk except on FB which is fine, but to
               me, a friend is like Tracy is to you. . . . I am not angry in any way,
               but I am not going to play games on FB. . . . Also, I know that you
               do most of what I had mentioned which is why I did not think that
               you would object so adamantly about a grading system since it is
               what you do every year with every foal. Why not put it into
               writing for others on your website? Anyhow, I still think that we
               have gleaned many insights and great ideas if I can collect them in
               a more expedient and easier to read summation. :) As a last
               request, I will ask you, like I did with Tracy, what actions from a
               trainer, to your horses, would force you to take them from their
               care and violate your trust and loyalty to them? You have had so
               many years with trainers, that your answer is very meaningful to
               me, Jane. I sincerely mean this which is why I continue to ask the
               question from both of you. I do appreciate your efforts and sharing
               of knowledge which is why I think that we have gotten along for
               so many years ... out of respect as Moms and fellow horse owners
               and breeders, I am off to be with my wonderful daughter. This has
               been exhausting?? LOL

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

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

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

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

should be kept private ladies.”

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

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

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

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

Backes also mentioned that she tried to find the picture of a child sitting at a computer saying,


                                                –4–
“the bitch blocked me,” but she could not find it. Johns responded she could not find the picture

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

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

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

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

check with her legal advisor.

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

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

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

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

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

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

Backes.

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

social media. Backes served as moderator of the “Who to Breed To” posting thread on a horse-

related site called “Pleasurehorse.” Posts on the site included topics ranging from horse sales,

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

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

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

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

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

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

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

through posts on the thread regarding her mental status and her horse breeding program. Backes,

                                              –5–
as moderator, deleted these postings. Backes admitted to deleting the thread; therefore, the

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

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

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

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

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

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

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

“mixed with innuendo or false facts.”

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

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

“Anythingshowhorse” Delphi Forum:

                      General- Munchausen Syndrome by Proxy

                      From: tmk5
                      to: All

                      Has anyone ever known anyone with this disease/issue?

                      If you have STRONG suspicions…to whom do you turn them
                      over?

                      I know this is a horse forum…but people have such vast life
                      experiences, I thought someone could point me in the right
                      direction.1

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

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

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

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

   1
       The ellipses are present in the original Post and do not indicate any deletion of text.



                                                                        –6–
              Seriously, Tracy,

              What is WRONG with you, Jane and the other minions? It’s one
              thing to bicker amongst our adult selves. You are now going to
              bring children into it? My advice to you would be to batten down
              the hatches. I have a feeling this is a low blow that will not even
              be tolerated.

              Shame on you. Shame on the others.

 Another comment by “lynnesmyname,” shared similar sentiments:

              Everyone can see right through you Tracy. What is wrong with
              you people. Do you not see how foolish you make yourself look
              coming on here saying that trash. You are a sad pathetic person
              and if you really had a concern for a child that might be the subject
              of this you certainly would not come on a public HORSE forum to
              see what to do. You’re a smart lady Tracy, surely you could figure
              out where to report such a person.

              Shameful, nasty, pathetic does not even describe this latest
              behavior.

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

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

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

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

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

              I want to thank everyone for the MULTITUDE of private emails
              and messages to me over the last hour or so. From those messages
              and three phone calls...I now have a GREAT resource available to
              help this child…that I was somehow attacked for trying to help.

              This makes no sense to me…and now I understand why people get
              tired of posting on forums.

              The people attacking me should be ASHAMED of themselves.
              EVERYONE that knows me closely…knows that I have worked
              since 1997 when my oldest daughter was born…to help children,
              whether through a formal organization or not. This is something
              near and dear to me, and always will be.

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


                                              –7–
                Got it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to her affidavit.

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

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

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

“marepower,” they understood the Post “referred to Karen Misko and her daughter, and I


                                               –8–
believed it implied that Karen Misko needed to be reported to proper authorities because she had

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

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

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

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

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

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

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

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

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

on July 13, 2013.

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

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

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

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

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

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

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

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

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

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

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

evidence for each essential element of her libel and civil conspiracy claim.




                                                –9–
        The trial court held a hearing on the motion to dismiss on May 6, 2014. The trial court

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

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

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

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

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

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

                                 Chapter 27 Standard of Review

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

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

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

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

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

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

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

(Tex. App.—Dallas 2014, no pet.).

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

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

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

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

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

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

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

ANN. § 27.001(7) (West 2015). The “[e]xercise of the right of association” is defined as “a


                                                –10–
communication between individuals who join together to collectively express, promote, pursue,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                –11–
                                       Johns’s Burden Under Section 27.005(b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


     2
       In Misko’s response to the motions to dismiss, she relied on the commercial speech exemption provided by section 27.010 and argued,
“Even if Chapter 27 applies to Misko’s claims,” she established a prima facie case on each essential element by clear and specific evidence.



                                                                  –12–
the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Tex. App.—Texarkana 2013, pet. filed).




                                               –13–
       In Pickens, the appellees sued appellant for invasion of privacy by public disclosure of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

impact of its resolution. Id. In concluding the trial court did not err in determining the alleged

                                               –14–
sexual assault was a private issue, the appellate court noted there was no evidence in the record

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

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

impact of the resolution. Id.

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

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

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

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

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

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

to dismiss. Id. at 187.

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

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

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

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

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

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

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

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

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

of a public nature. Id.

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

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

frequently visited by others. The Post invited responses and in fact, garnered both positive and

                                              –15–
negative replies. It received 1255 views and one hundred twenty-six responses, seventeen of

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

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

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

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

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

right.

                          Backes’s Burden Under Section 27.005(b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                              –16–
          While Misko’s counterclaim focuses on the Post, she also supports her conspiracy claim

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

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

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

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

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

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

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

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

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

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

emails were communications between individuals joined together to collectively express,

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

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

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

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

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

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

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

such as horse breeding.3 Thus, Misko’s lawsuit is based on, relates to, or was filed in response to

Backes’s association with Johns on social media.



     3
       During oral argument, Misko argued for the first time that Backes should not be allowed to deny her involvement in the Post and at the
same time, seek dismissal under chapter 27 based on her right of association. She argued such an argument flies in the face of this court’s
holding in Pickens, in which we held that when a motion to dismiss is premised on the right to speak freely, yet the person filing the motion
denies writing the very communication that is the focus of the motion, chapter 27 does not apply. 433 S.W.3d at 188. Misko did not raise this
argument in her brief; therefore, we will not address it. See TEX. R. APP. P. 39.2 (“Oral argument should emphasize and clarify the written


                                                                  –17–
          Before addressing whether Misko met her burden under section 27.005(c) to provide

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

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

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

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

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

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

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

                                       Application of Section 27.010 Exemption

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

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

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

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

          Section 27.010(b) states:

                     [The TCPA] does not apply to a legal action brought against a
                     person primarily engaged in the business of selling or leasing
                     goods, or services, if the statement or conduct arises out of the sale
                     or lease of goods, services, or an insurance product, insurance
                     services, or a commercial transaction in which the intended
                     audience is an actual or potential buyer or customer.

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

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

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

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




arguments in the briefs.”); see also Foster v. Richardson, 303 S.W.3d 833, 839 n.6 (Tex. App.—Fort Worth 2009, no pet.) (refusing to consider
arguments raised in oral argument about deficiencies in an expert affidavit that were not raised in brief).



                                                                  –18–
goods or services of the person making the statement. Id. at 88–89. The party asserting the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                               –19–
       Regardless of whether Misko is a competitor with Backes or a sometimes competitor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                                –20–
        In reaching this conclusion, Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

services.” Id.

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

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

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

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

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

within section 27.010’s exemption.




                                              –21–
       Having concluded the exemption does not apply, we now address whether Misko met her

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

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

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

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

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

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

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

protected expression of opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                               –22–
       A statement is defamatory if it tends to injure the subject’s reputation, to expose her to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                              –23–
Misko understood from reading the Post that it referred to her. Matthews, 339 S.W.2d at 894;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

accusation that Misko was a child abuser.

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

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




                                              –24–
sites. They also testified they believed the Post was directed at Misko and her daughter and that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                              –25–
a fake company name, and plaintiff provided evidence in support of its defamation suit that some

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

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

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

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

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

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

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

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

her.

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

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

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

‘rhetorical question.’”

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

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

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

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

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

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

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

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

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




                                              –26–
       The Post, however, as argued by Misko is a rhetorical question. Misko provided clear

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

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

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

MSBP and allegedly abusing her daughter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                              –27–
       On the facts before us, we conclude Misko offered clear and specific evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of a conspiracy to publish the Post. We agree.

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

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

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

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

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


                                                 –28–
liability for conspiracy depends on “participation in some underlying tort for which the plaintiff

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

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

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

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

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

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

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

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

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

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

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

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

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

threshold.

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

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

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

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

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

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



     4
       Misko argues Backes and Johns have “miscast” her civil conspiracy claim as being a conspiracy to publish the Post; however, Misko
claims theirs was a conspiracy to defame her, which was “furthered and accomplished by Johns’ Munchausen post.” Regardless of how Misko
claims to have pleaded her conspiracy claim, she still has failed to bring forth clear and specific evidence supporting an essential element of the
claim–a meeting of the minds between Johns and Backes to defame her.



                                                                     –29–
       The post on Backes’s Facebook wall in which Johns asked, “Is it appropriate to do a

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

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

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

“preemptive strike.”

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

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

burden under section 27.005(c).

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

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

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

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

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

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

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

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

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

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

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

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

to present her conspiracy claim.

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

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

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

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

deleted thread.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

have been favorable to the destroyer).

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

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

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

                                          Conclusion

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

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


                                             –31–
counterclaim against her. We remand Backes’s case to the trial court for a determination of

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

PRAC. & REM. CODE ANN. § 27.009(a).




140566F.P05

                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE




                                            –32–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JANE MCCURLEY BACKES D/B/A                          On Appeal from the 429th Judicial District
BACKES QUARTER HORSES AND                           Court, Collin County, Texas
TRACY JOHNS, Appellants                             Trial Court Cause No. 429-01844-2013.
                                                    Opinion delivered by Justice Bridges.
No. 05-14-00566-CV         V.                       Justices Lang and Evans participating.

KAREN MISKO AND MISKO QUARTER
HORSES, LLC, Appellees

       In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order
denying appellant Tracy Johns’s motion to dismiss.

       We REVERSE the trial court’s order denying appellant Jane McCurley Backes d/b/a/
Backes Quarter Horses and RENDER judgment dismissing appellees’ Karen Misko and Misko
Quarter Horses, LLC’s civil conspiracy counterclaim against appellant Jane McCurley Backes
d/b/a/ Backes Quarter Horses. We REMAND appellant Jane McCurley Backes d/b/a/ Backes
Quarter Horses’s case back to the trial court for a determination of costs, attorney’s fees and
other expenses as authorized under TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a).

        It is ORDERED that Jane McCurley Backes d/b/a/ Backes Quarter Horses recover her
cost of this appeal from Karen Misko and Misko Quarter Horses, LLC.

        It is ORDERED that Karen Misko and Misko Quarter Horses, LLC recover their cost of
this appeal from Tracy Johns.


Judgment entered March 13, 2015.




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