                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                ___________________________
                     No. 02-19-00124-CV
                ___________________________

RICHARD ROGERS & RRK REAL ESTATE INVESTMENTS & HOLDINGS,
                     LLC, Appellants

                                V.

             SOLEIL CHARTERED BANK, Appellee



              On Appeal from the 48th District Court
                     Tarrant County, Texas
                 Trial Court No. 048-303257-18


               Before Kerr, Birdwell, and Bassel, JJ.
              Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                   I. Introduction

      This is an interlocutory appeal from the denial of a motion to dismiss filed

pursuant to the Texas Citizens Participation Act (the TCPA or the Act). This appeal

brings us what has become a routine scenario: one party is dissatisfied with another’s

services, the dissatisfied party posts negative information on the internet, the service

provider considers the posted statements defamatory and sues, and the dissatisfied

party (now the defendant) invokes the TCPA. Here, the parties presented the trial

court with perfunctory efforts to deal with the TCPA issues, and the trial court denied

the TCPA motions to dismiss. The dissatisfied parties invoking the TCPA made a

sufficient showing to bring themselves within the sweeping orbit of the TCPA. The

service provider as the responding party relied almost exclusively on its petition to

present the clear and specific evidence necessary to establish a prima facie case and to

avoid a TCPA dismissal. That scant effort was not enough, and the underlying claims

should have been dismissed. We therefore must reverse and remand.

                     II. Factual and Procedural Background

      Our knowledge of the dispute’s background comes mostly from the affidavits

attached to the TCPA motions to dismiss filed by Appellants RRK Real Estate

Investments & Holdings, LLC and Richard Rogers. The controversy has its genesis in

a failed effort to finance a real estate project. RRK, acting through its manager and

CEO, Rogers, worked with a broker to obtain financing for the project. That broker

                                           2
introduced Rogers to an intermediary that allegedly was going to obtain millions of

dollars in financing from Soleil Capitale, a party that shares the initial name as

Appellee and the plaintiff below, Soleil Chartered Bank. The financing required the

monetization of a standby letter of credit. The broker instructed RRK to send

$30,000 to “Soleil Bank,” and RRK did so in accordance with the information

contained in correspondence from the intermediary.

      RRK claims that the intermediary said that the money was sent too early but

assured RRK that the deal could still be done. According to RRK, months passed,

and RRK began asking questions. The intermediary laid the blame on Soleil, claiming

that it had not produced the “right instrument” and that the intermediary had begun

efforts to obtain return of the $30,000 payment.

      Next, the intermediary allegedly wanted “to wash [its] hands of the situation”

and gave Rogers the contact information for Soleil. Rogers claims that he received

shifting excuses from Soleil. Internet research performed by Rogers also produced a

concern that Soleil “might not have ever had the ability to pull off this transaction.”

Allegedly, at that point, Soleil threatened to sue. Rogers claimed that his position was

that he wanted the $30,000 back and that he told Soleil that if it could produce

evidence that another party was at fault for the situation, he would look to that party.

Soleil allegedly quit responding to Rogers, and the intermediary refused to be

involved.



                                           3
      Rogers was as at a loss on how to obtain return of the $30,000 when a friend

suggested posting about his plight on RipOffReport.com. The friend told Rogers that

reporting matters on the website got matters resolved quickly. According to the

friend, RipOffReport.com allows parties to air their grievances and gives the “accused

company” a chance to demonstrate that it handles disputes well. Rogers claimed that

he posted “the story as it was presented to [him and RRK] and simply recounted [his

and RRK’s] experience with both [the intermediary] and Soleil.” The posting did not

produce a congenial resolution. The intermediary allegedly produced evidence placing

the blame on Soleil. Soleil responded with another threat of suit.

      Rogers claimed that he again sought either (1) evidence that the intermediary

was at fault or (2) the return of the $30,000 from Soleil, and that if either occurred, he

would post the positive outcome on RipOffReport.com. Allegedly, this produced a

threat that if a positive report were not forthcoming, Soleil would sue.

      Rogers claimed that he found “other reports of people saying that Soleil

Chartered Bank had also taken their money or didn’t provide a Bank Guarantee or

[Standby] Letter of Credit that could actually be utilized.” Also, Rogers claimed that

he responded “to the man that contacted me[] and simply stated that if we could get

the $30,000 USD back from Soleil Chartered Bank, we would be more than happy to

post something positive, but RipOffReport.com wouldn’t allow anyone to remove

reports.” The pre-suit episode ended with Rogers claiming that he heard nothing else

from Soleil until notice of a lawsuit was taped to his front door.

                                            4
        Soleil sued Rogers and RRK. The core of the petition was that Rogers and

RRK had made several posts on RipOffReport.com “containing several false

statements.” The petition then quoted three of the posts but did not specify which

statements within the posts were false. The only other statement about the falsity of

the statements concluded that “[m]any of the allegations contained in these

publications are false.” Based on these “allegations,” the petition asserted causes of

action for defamation, business disparagement, and tortious interference with

prospective advantage. The two pages of the petition asserting the specific causes of

action were conclusory allegations of the elements of the various causes of action.

        Rogers responded to the suit with a special appearance and an answer. We do

not find an answer on behalf of RRK in the clerk’s record, but Rogers and RRK each

filed an “Anti-SLAPP Motion to Dismiss.” Those motions contain identical grounds:

“The pleadings on file and the supporting affidavit(s) show by a preponderance of the

evidence that Plaintiff’s causes of action [for] slander, libel, defamation of character,

intentional infliction of emotional distress, interfering with economic benefit[,] and fraud[] are based

[on] Defendant’s exercise of First Amendment . . . right of free speech . . . .” [Emphasis added.]

The causes of action referenced in the motions to dismiss do not align with the causes

of action alleged in the petition. The affidavits from which we extracted our factual

summary were attached to the motions to dismiss.

        Soleil filed briefs in response to Rogers’s and RRK’s motions to dismiss.

Soleil’s briefs made legal arguments challenging Rogers’s and RRK’s reliance on the

                                                   5
TCPA. But the only evidence that Soleil attached to its brief responding to RRK’s

motion was a copy of its petition, and the only evidence it attached to its brief

responding to Rogers’s motion was a copy of the petition and an unauthenticated

copy of Rogers’s postings on the RipOffReport.com website.

      The trial court denied Rogers’s special appearance. The trial court also denied

Rogers’s and RRK’s motions to dismiss. Rogers and RRK perfected an appeal from

the denial of these motions arguing in a single issue that the trial court erred by

denying their TCPA motions to dismiss.

                              III. Standard of Review

      Because we construe the language of the TCPA in this appeal, we apply a

de novo standard of review. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,

899 (Tex. 2017); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897

(Tex. 2018) (“In TCPA appeals, we have decided whether communications are

matters of public concern under a de novo standard of review, suggesting that the

determination is one of law.”).

                                   IV. Analysis

A. We apply the structure and procedural process of the TCPA.

      In this memorandum opinion, we will not outline the history or the purpose of

the TCPA but initially quote the concurring opinion from the Austin Court of

Appeals that sets forth an overview of the TCPA and describes the procedural

mechanisms created by the TCPA:

                                         6
      [t]he specific means by which the [l]egislature sought to accomplish the
      TCPA’s stated purposes was to provide a new set of procedural
      mechanisms through which a litigant may require, by motion, a
      threshold testing of the merits of legal proceedings or filings that are
      deemed to implicate the expressive interests protected by the statute,
      with the remedies of expedited dismissal, cost-shifting, and sanctions for
      any found wanting.

Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.) (op. on reh’g)

(Pemberton, J., concurring).1

      The Act implements these procedural mechanisms with a three-tiered

approach:

      Once a motion to dismiss is filed, a burden-shifting mechanism goes
      into effect. [In re] Lipsky, 460 S.W.3d [579,] 586–87 [(Tex. 2015) (orig.
      proceeding)]. First, a defendant moving for dismissal has the burden to
      show by a preponderance of the evidence that the plaintiff filed a “legal
      action” that is “based on, relates to, or is in response to” the defendant’s
      exercise of the right of free speech, the right to petition, or the right of
      association. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b);
      Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).

             Second, if the defendant satisfies that burden, to avoid dismissal, a
      plaintiff must establish by clear and specific evidence a prima facie case
      for each essential element of its claim. Tex. Civ. Prac. & Rem. Code
      Ann. § 27.005(c). The requirement for “clear and specific evidence”
      means the plaintiff “must provide enough detail to show the factual
      basis for its claim.” Lipsky, 460 S.W.3d at 590–91.


      1
        On September 1, 2019, substantial revisions to the TCPA became effective.
See Act of May 17, 2019, 86th Leg., R.S., H.B. 2730, §§ 1–9, 12 (to be codified at Tex.
Civ. Prac. & Rem. Code Ann. §§ 27.001, .003, .005–.007, .0075, .009–.010). These
amendments are irrelevant here because they apply “only to an action filed on or after
the effective date of this Act. An action filed before the effective date of this Act is
governed by the law in effect immediately before that date, and that law is continued
in effect for that purpose.” See id. § 11.


                                           7
            Third, even if the plaintiff establishes a prima facie case, the
      defendant can still obtain dismissal if he “establishes by a preponderance
      of the evidence each essential element of a valid defense to the
      nonmovant’s claim.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).[2]

Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied).

      As we explain below, we conclude that Soleil filed a legal action that related to

the right of free speech as that right is defined by the TCPA; thus, the Act applies.

We further conclude that Soleil failed to establish a prima facie case for each essential

element of the causes of action that it alleged. Thus, the third step involving proof of

an affirmative defense does not come into play.

B. The TCPA applies to Soleil’s action.

      Checking off the definitional boxes of the TCPA, Soleil’s action is in response

to Appellants’ exercise of their rights of free speech because Soleil’s suit involved

statements made in connection with a matter of public concern, i.e., an issue related to

a service in the marketplace.

      1. We apply the broad language of the TCPA in accordance with its
      plain meaning.

      We interpret the definitions of the TCPA “according to their plain language”

while remaining mindful that that the Act is to be construed “liberally to effectuate its

purpose and intent fully.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)



      2
       The quoted language is set forth in a single paragraph. We have divided the
quoted language into multiple paragraphs for ease of reading.


                                           8
(quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.011); see Coleman, 512 S.W.3d at 899

(reiterating Lippincott’s plain-language directive).

       A party may file a motion to dismiss under the TCPA when faced with “a legal

action [that] is based on or is in response to a party’s exercise of the right of free

speech.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). To determine whether the

action is based on the exercise of the right of free speech, we follow a building-block

process of applying the Act’s definitions. Specifically, with respect to the right of free

speech, the supreme court has described that process as follows:

   • [T]he defendant, who has moved to dismiss, must show by a
     preponderance of the evidence that the plaintiff’s claim “is based on,
     relates to, or is in response to the [movant’s] exercise of: (1) the right of
     free speech; (2) the right to petition; or (3) the right of association.”
     Tex. Civ. Prac. & Rem. Code [Ann.] § 27.005(b); In re Lipsky, 460 S.W.3d
     at 586 (alteration in original) (footnotes omitted).

   • The TCPA defines “exercise of the right of free speech” as “a
     communication made in connection with a matter of public concern.”
     Tex. Civ. Prac. & Rem. Code [Ann.] § 27.001(3).

   • A “‘[c]ommunication’ includes the making or submitting of a statement
     or document in any form or medium, including oral, visual, written,
     audiovisual, or electronic.” Id. § 27.001(1).

   • Finally, a “‘[m]atter of public concern’ includes an issue related to:
     (A) health or safety; (B) environmental, economic, or community well-
     being; (C) the government; (D) a public official or public figure; or (E) a
     good, product, or service in the marketplace.” Id. § 27.001(7).[3]



       The quoted language is not bulleted in Coleman. We use bullets for ease of
       3

reading.


                                              9
Coleman, 512 S.W.3d at 898–99.

      A movant may rely on the pleadings and affidavits to establish the Act’s

application. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (“In determining

whether a legal action . . . should be dismissed under this chapter, the court shall

consider the pleadings . . . and supporting and opposing affidavits stating the facts on

which the liability or defense is based.”). When dealing with the first step of whether

the TCPA applies, the pleadings often answer the question posed in that step because

“[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the Act,

the defendant need show no more.” Adams, 547 S.W.3d at 897 (quoting Hersh v.

Tatum, 526 S.W.3d 462, 467 (Tex. 2017)).

      2. Soleil’s pleadings demonstrate that the TCPA applies in this suit.

      The underlying facts are not complicated. They fall within the wide net of the

TCPA because they implicate the right of free speech as defined by the TCPA in that

they involve a communication that relates to a service in the marketplace. Rogers and

RRK sought a banking service from Soleil. They believed that Soleil had failed to

perform that service and had then misrepresented what had occurred. Allegedly,

Rogers and RRK posted on RipOffReport.com both to obtain a resolution of the

issue and to warn others of Soleil’s actions in this case and the concern that Soleil

might not have the ability to provide anyone with the services that it allegedly was to

provide RRK. Then, when Rogers and RRK sought to resolve the dispute and to

obtain the return of the $30,000 payment, they were threatened with suit and were

                                           10
eventually sued. Though not containing the negative information set out in Rogers’s

and RRK’s affidavits, Soleil’s petition bears out that it offered financial services, that

Rogers and RRK criticized those services, and that they did so in a public forum.

      These facts are caught in the wide net cast by the TCPA. See id. at 894 (“The

TCPA casts a wide net.”). The face of Soleil’s pleadings—in this case reinforced by

Rogers’s and RRK’s affidavits—show the alleged defamatory communications made

by Rogers and RRK raised “issues related to” Soleil’s products or services in the

marketplace as an offeror of financial services. See id. (holding that the TCPA applied

because “[t]he alleged defamatory communications made by Adams raise[d] ‘issues

related to’ Starside’s products or services in the marketplace as a homebuilder and

neighborhood developer”); Coleman, 512 S.W.3d at 900 (noting that “[t]he TCPA does

not require that the statements specifically ‘mention’ health, safety, environmental, or

economic concerns, nor does it require more than a ‘tangential relationship’ to the

same”; instead “TCPA applicability requires only that the defendant’s statements are

‘in connection with’ ‘issue[s] related to’ health, safety, environmental, economic, and

other identified matters of public concern chosen by the [l]egislature” (citing Tex. Civ.

Prac. & Rem. Code Ann. § 27.001(3), (7))).

      The Austin Court of Appeals recently looked to the broad definitions of the

TCPA and held that they applied to a report posted on RipOffReport.com. Morrison

v. Profanchik, 578 S.W.3d 676, 678 (Tex. App.—Austin 2019, no pet. h.). Morrison dealt

with an allegedly fake negative review posted by a business’s competitor. Id. at 678–

                                           11
79. The explanation of why the Act applied to the claims in Morrison is a template for

why the Act applies in this case:

      Here, [plaintiff’s] petition makes it clear that his defamation claim is
      based on or in response to the ripoffreport.com review that he attributes
      to [defendants]: “Defendants published and/or have caused to be
      imminently published false and defamatory statements of fact about
      Plaintiff, as set forth in the ripoffreport.com fake review.” Further,
      [plaintiff’s] petition asserts that the ripoffreport.com review is a “fake
      consumer review” that complains about services provided by Profanchik
      Sr.’s business. Thus, by relying on [plaintiff’s] pleadings, [defendants]
      showed that [plaintiff’s] defamation claim is based on [defendants’]
      exercise of free speech—i.e., its alleged posting of the ripoffreport.com
      review of the services offered by Profanchik Sr.’s business—and thus
      covered by the Act.

Id. at 681–82.

      Here, Soleil describes itself as “in the business of financial services for clients

around the world.” Soleil describes Rogers and RRK’s actions as publishing “false

statements about [Soleil]’s business.” Soleil’s petition references several instances in

which Rogers and RRK “published the following on RipOffReport.com containing

several false statements.” The petition describes the purpose of the statements as

“accus[ing Soleil] of committing crimes and unlawful conduct with respect to [Soleil’s]

business” and “of immoral behavior.” Soleil has pleaded itself into the TCPA’s

application: its petition references communications that involve the exercise of free

speech because they are made with respect to a matter of public concern—an issue

related to a service in the marketplace.




                                           12
      3. Soleil’s argument that Rogers and RRK did not preserve error fails.

      Soleil’s appellate brief makes no substantive argument challenging the

application of the TCPA. Instead, it challenges the form of Rogers’s and RRK’s

motions to dismiss, claiming that the motions presented only one sentence of

argument that the TCPA applied to Soleil’s suit and that Rogers and RRK did not

fully develop that argument until filing a reply to Soleil’s response.                  We are

unpersuaded.

      Initially, Soleil does not tell us why the motions were deficient. Both motions

contain similar grounds. Though not elaborate, the allegations make the basic point

of which TCPA right Rogers and RRK are invoking and why they contend that right

protects them:

      The pleadings on file and the supporting affidavit(s) show by a
      preponderance of the evidence that Plaintiff’s causes of action [for]
      slander, libel, defamation of character, intentional infliction of emotional
      distress, interfering with economic benefit[,] and fraud[] are based [on]
      Defendant’s exercise of his First Amendment . . . right of free speech as defined in
      Texas Civil Practice and Remedies Code § 27.001 and demonstrate that
      Plaintiff has failed to establish by clear and specific evidence a prima
      facie case for each essential element of Plaintiff’s claim(s). Richard Rogers
      has exercised his First [A]mendment rights to speak out against a good, product, or
      service in the marketplace[,] which is a matter of public concern under Tex. Civ.
      Prac. & Rem. Code [Ann.] § 27.001(7)(E)[.] [Emphasis added.]

Though not artful in their description of Soleil’s claims, Rogers and RRK’s grounds

communicate the basic premise of a motion to dismiss: the TCPA applies because

Rogers and RRK were exercising a TCPA-defined right of free speech.



                                              13
       Nor does Soleil cite any case suggesting that the motions’ grounds are deficient.

In fact, Soleil cites only two federal cases for the irrelevant proposition that arguments

raised for the first time in a reply are untimely:

       Gillaspy v. Dallas Ind. Sch. Dist., 278 [F. App’x] 307, 315 (5[th] Cir. 2008)
       (“It is the practice of this court and the district courts to refuse to
       consider arguments raised for the first time in reply briefs[.”]); Springs
       Indus. Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991).

       Soleil’s failure to cite cases that support its position is understandable as the

caselaw is contrary to its argument. First, the supreme court has warned the courts of

appeals not to be “too strict” in their application of error-preservation principles in

TCPA cases. See Adams, 547 S.W.3d at 896–97. In Adams, a party’s mentioning the

nature of the public concern at a TCPA-motion-to-dismiss hearing preserved error.

Id. The supreme court buttressed this holding with the concept that we have already

mentioned:     “the unique language of the TCPA directs courts to decide its

applicability based on a holistic review of the pleadings.” Id. at 897. Adams instructs

that while conducting a de novo review, it is our role to decide, as a matter of law,

whether the petition is based on or related to a matter of public concern and not to

become mired in a microscopic analysis of error preservation:

       We have not previously cabined our TCPA analysis to the precise legal
       arguments or record references a moving party made to the trial court
       regarding the TCPA’s applicability. Our focus instead has been on the
       pleadings and on whether, as a matter of law, they are based on or relate
       to a matter of public concern.




                                             14
Id.; see also Morrison, 578 S.W.3d at 681 (holding that motion to dismiss—which stated

conclusory allegation that suit involved a matter of public concern because its

statements concerned goods, products, or services in the marketplace—preserved

error because “to determine the basis of a legal action for purposes of the first step in

the dismissal procedure, it is necessary to consider the plaintiff’s petition, which is ‘the

“best and all-sufficient evidence of the nature of the action”’” (quoting Hersh, 526

S.W.3d at 467)). The grounds recited in Rogers’s and RRK’s motions to dismiss are

not elaborate, but they certainly raise an issue that is our responsibility to determine as

a matter of law: does the TCPA apply to the allegations in Soleil’s petition?

C. Soleil relied on its petition as its sole proof to establish a prima facie case
for defamation. The petition’s allegations never identified the specific
statements that it contends were defamatory. Thus, Soleil failed to offer the
clear and specific evidence necessary to establish a prima facie case of
defamation.

       Suffering from the combined strategic disadvantages of the wide net of the

TCPA and the relatively low preponderance burden to show the Act’s application, a

party facing a motion to dismiss often loses the first battle in the TCPA dismissal war.

But the nonmovant can often rally from that initial setback and prevail in the second

battle of the war by offering the clear and specific evidence necessary to establish a

prima facie case for each element of its claims. Here, Soleil marshalled minimal

resources for the second battle and offered only its petition to satisfy its burden to

establish prima facie proof. The TCPA allows a nonmovant to rely on its pleading to

establish a prima facie case, but a party’s choosing to rely only on its pleading gambles

                                            15
that the often-times conclusory and sketchy allegations of a notice pleading will not

satisfy the clear and specific burden of establishing a prima facie case. Soleil took that

gamble, and we hold that Soleil’s gamble did not pay off. As we explain below,

Soleil’s pleading lacks the specificity necessary to establish what false statements were

allegedly made by Rogers and by RRK.4

       As set forth above, the second step of the TCPA dismissal process requires a

plaintiff to establish by clear and specific evidence a prima facie case for each essential

element of its claim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The TCPA

creates a unique situation in which a party’s pleadings are considered as evidence that

the trial court must rely on in determining whether to dismiss a legal action. See id.

§ 27.006(a) (“In determining whether a legal action should be dismissed[,] . . . the

court shall consider the pleadings . . . and supporting and opposing affidavits stating

the facts on which the liability or defense is based.”); see also Bass v. United Dev. Funding,

L.P., No. 05-18-00752-CV, 2019 WL 3940976, at *17 n.20 (Tex. App.—Dallas Aug.

21, 2019, no pet. h.) (mem. op.) (collecting cases standing for the proposition that

pleadings are evidence for purposes of the TCPA). 5


       4
        Soleil also attached a printout of postings on RipOffReport.com. This
evidence is not authenticated in any way nor does any affidavit tell us what we should
glean from it. We therefore do not consider the printout in our analysis.

       Many of the cases listed in Bass state that the evidence must be viewed in the
       5

light most favorable to the nonmovant. Though it is not pivotal to our disposition, a
member of this panel recently expressed concern that such a standard imports
language into the TCPA not found in the version of the Act that we apply. See Mogged

                                             16
      Though a pleading functions as evidence under the TCPA, that does not mean

that a pleading that is sufficient to provide an opposing party with fair notice of the

claim being made automatically makes that pleading sufficient to meet the clear and

specific standard necessary to establish a prima facie case under the TCPA. The

supreme court dealt specifically with this distinction in the context of a TCPA motion

to dismiss filed in a defamation case:

      Fair notice of a claim under our procedural rules thus may require
      something less than “clear and specific evidence” of each essential
      element of the claim. Because the Act requires more, mere notice
      pleading—that is, general allegations that merely recite the elements of a
      cause of action—will not suffice. Instead, a plaintiff must provide
      enough detail to show the factual basis for its claim. 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.

Lipsky, 460 S.W.3d at 590–91 (emphasis added).

      Thus, we must ask whether Soleil’s petition provides enough detail to show the

factual basis of its defamation claim. As we noted above, Soleil’s petition quotes

several of the posts that Roger made on RipOffReport.com and prefaces the

quotations with the statement that the posts contain several false statements. The

first quote contains five paragraphs and 525 words. In essence, the petition states that


v. Lindamood, No. 02-18-00126-CV, 2018 WL 6920502, at *12–14 (Tex. App.—Fort
Worth Dec. 31, 2018, pet. abated) (mem. op.) (Kerr, J., dissenting and concurring)
(calling into doubt the applicability of rule 166a standards to resolve a TCPA motion
to dismiss under the then-existing version of the Act) (en banc reconsideration
ordered on this court’s own motion).


                                              17
Rogers and RRK allegedly made false statements and that those statements were

contained somewhere in the posts on RipOffReport.com, but the petition does not

identify which statements are false. This failing renders the petition so conclusory

that, standing on its own, it does not provide the clear and specific evidence necessary

to avoid dismissal.6

      Such an allegation does not appear to even satisfy the rules of fair-notice

pleading. When a party predicates a defamation claim on a writing, traditional Texas

pleading rules require the party to be specific about what statement was false, and the

failure to do so makes the petition’s allegation of defamation conclusory:

      In an action for libel, “the petition must set out the particular
      defamatory words[] or at least their substance and meaning.” Murray v.
      Harris, 112 S.W.2d 1091, 1094 (Tex. Civ. App.—Amarillo 1938, writ
      dism’d); Rio Grande Valley Gas Co. v. Caskey, 33 S.W.2d 848, 849–50 (Tex.
      Civ. App.—San Antonio 1930, no writ). Nowhere in Kahn’s petition
      does he inform the court of the libelous matter nor does he set out the
      parts of the writing upon which the alleged libel is based. Rio Grande
      Valley Gas Co., 33 S.W.2d at 849. In short, we are left only with Kahn’s
      opinions and conclusions as to the libelous matter.

Kahn v. Beicker Eng’g, Inc., No. 04-94-00823-CV, 1995 WL 612402, at *2 (Tex. App.—

San Antonio Oct. 18, 1995, writ denied) (not designated for publication); cf. Davis v.

Prosperity Bank, 383 S.W.3d 795, 804 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(affirming no-evidence summary judgment on defamation claim because of plaintiff’s




      6
       We attach a copy of the petition as an appendix to this opinion.


                                          18
failure to identify specific defamatory statements in a police report relating to an arrest

at a bank).

       If a pleading must describe the defamatory statements to be sufficient under

the notice-pleading standard, we do not see how a pleading that fails to do so

provides the clear and specific prima facie evidence needed to establish Soleil’s prima

facie case for defamation. By taking the approach of quoting swaths of Rogers and

RRK’s posts and stating that the posts contain false statements but never specifying

which statements in the quotes are false, Soleil failed to carry that burden. Certainly,

the petition goes beyond a mere statement that defamatory statements were made

while not quoting any of the alleged defamers’ words. But in significant ways, Soleil’s

petition is the functional equivalent of such an allegation because it never identifies

which statements are allegedly false.

       Thus, we cannot determine whether the statements that Soleil contends are

false are of only picayune significance or constitute defamatory statements because

they “tend[] to injure a living person’s reputation and thereby expose the person to

public hatred, contempt or ridicule, or financial injury or to impeach any person’s

honesty, integrity, virtue, or reputation.” See Tex. Civ. Prac. & Rem. Code Ann.

§ 73.001. And without that information, Soleil cannot carry its burden of establishing

a prima facie case by clear and specific evidence that Rogers and RRK committed

defamation. As the supreme court held in Lipsky, “[T]he facts of when, where, and

what was said[;] the defamatory nature of the statements[;] and how they damaged the

                                            19
plaintiff should be sufficient to resist a TCPA motion to dismiss.” 460 S.W.3d at

590–91. Because of the structure of Soleil’s petition, we lack knowledge of “what was

said” and “the defamatory nature of the statements.” Accordingly, we hold that the

trial court erred by not dismissing Soleil’s defamation claim.

D. Soleil’s business-disparagement claim should have been dismissed because
Soleil failed to offer clear and specific evidence that established a prima facie
case on that claim’s damage element.

       We hold that the trial court should have also dismissed Soleil’s business-

disparagement claim but on different grounds than Soleil’s defamation claim. The

record does not contain even a superficial effort to establish that Soleil suffered

damages as a result of the Rogers and RRK’s alleged disparagement. This failure

means that Soleil has failed to establish a prima facie case on each element of its

business-disparagement claim. Thus, the business-disparagement claim should also

have been dismissed.

       “To prevail on a business[-]disparagement claim, a plaintiff must establish that

(1) the defendant published false and disparaging information about it, (2) with

malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.”

Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (citing Hurlbut v.

Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987)).          Though similar to a

defamation claim, there are critical differences between defamation and

disparagement. Hurlbut, 749 S.W.2d at 766. The critical difference that applies here is

that “the common law require[s] [a] plaintiff in a defamation action to prove special

                                            20
damages in only a limited number of situations, whereas pecuniary loss to the plaintiff

must always be proved to establish a cause of action for business disparagement.” Id.

       To establish damages for disparagement, a plaintiff must meet a stringent

burden. First, the “plaintiff [must] ‘establish pecuniary loss that has been realized or

liquidated as in the case of specific lost sales.’” Id. at 767 (quoting W. Keeton, Prosser

and Keeton on the law of Torts, § 128 (5th ed. 1984)). “Furthermore, the communication

must play a substantial part in inducing others not to deal with the plaintiff with the

result that special damage, in the form of the loss of trade or other dealings, is

established.” Id.

       Soleil made no effort to meet this burden. Soleil’s petition alleges its business-

disparagement claim in five paragraphs, each containing a single short sentence. The

extent of Soleil’s allegation of damages is that Appellants’ “actions resulted in

damages, including special damages[,] in the amount to be determined at trial[] but in

no event less than $200,000.00.” The claim section does incorporate the petition’s

factual allegations, but that section of the petition says nothing about damages. Soleil

did not file an affidavit to carry its burden to establish a prima facie case.

       Cases applying that burden in the context of a TCPA motion to dismiss show

how lacking Soleil’s effort was. This court recently cited the supreme court’s directive

that a general averment of damages does not satisfy a TCPA nonmovant’s burden to

establish that it suffered damage. See Van Der Linden v. Khan, 535 S.W.3d 179, 197

(Tex. App.—Fort Worth 2017, pet. denied) (“The supreme court has instructed us

                                             21
that ‘general averments of direct economic losses and lost profits’—even when a

dollar amount is specified—do not satisfy the minimum requirements of the TCPA.”

(quoting Lipsky, 460 S.W.3d at 593)). In Van Der Linden, the nonmovant offered

affidavit proof of its damages, but that affidavit failed to carry its burden because it

did not include any facts showing how its damages were calculated. Id. at 197; see

S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (“Direct

evidence of damages is not required, but the evidence must be sufficient to allow a

rational inference that some damages naturally flowed from the defendant’s conduct.”

(citing Lipsky, 460 S.W.3d at 591, 592)).

      The conclusory allegation in Soleil’s petition is a general averment of damages

that utterly fails to constitute the clear and specific evidence necessary to carry its

burden to establish a prima facie case on the damages element of its business-

disparagement claim. Accordingly, we hold that the trial court erred by not dismissing

Soleil’s business-disparagement claim.

E. Soleil’s tortious-interference claim should have been dismissed because
Soleil failed to offer clear and specific evidence that established a prima facie
case on that claim’s damage element.

      Soleil’s proof of damages supporting its claim for “tortious interference with

prospective contracts” suffers from the same fatal deficiency as its business-

disparagement claim. Soleil titles its third claim for relief as “Tortious Interference

with Prospective Advantage.” But in the specific allegations, Soleil describes its claim

as “tortious interference with prospective contracts.” We construe the claim to be

                                            22
one for tortious interference with prospective business relations. Soleil failed to

provide prima facie proof of the claim, and it should have been dismissed as well.

       To prevail on a claim for tortious interference with prospective business

relations, a plaintiff must show the following:

       (1) a reasonable probability that the plaintiff and a third party would
       have entered into a contractual relationship; (2) that an independently
       tortious or wrongful act by the defendant prevented the relationship
       from occurring; (3) that the defendant did the act with a conscious desire
       to prevent the relationship from occurring or knew that the interference
       was certain or substantially certain to occur as a result of the conduct;
       and (4) that the plaintiff incurred actual harm or damage as a result of
       the defendant’s interference.

Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 632–33 (Tex. App.—Fort

Worth 2007, pet. denied) (op. on reh’g) (citations omitted), abrogated on other grounds by

Dallas Symphony Ass’n, Inc. v. Reyes, 571 S.W.3d 753, 760 (Tex. 2019).

       Our opinion in Van Der Linden, which was described above, specifically dealt

with a tortious-interference-with-prospective-business-relations claim and applied to

that claim the principle just outlined: general averments of damages will not carry a

TCPA nonmovant’s burden of proof to establish a prima facie case. 535 S.W.3d at

197.   Here, Soleil put no more effort into its proof damages for its tortious-

interference claim than it did for its disparagement claim.

       Soleil’s tortious-interference claim is alleged in a brief series of one-sentence

paragraphs.   The full extent of the damage allegation is that “[s]uch false and

defamatory statements ha[ve] proximately caused actual damages to Plaintiff in the


                                           23
amount to be determined at trial[] but in no event less than $200,000.00.” As noted,

damages are not even mentioned in the underlying factual allegations of the petition.

The petition’s conclusory damages allegation does not come close to what Soleil

needed to offer to establish a prima facie case on the element of damages for tortious

interference with prospective business relations. Thus, we hold that the trial court

erred by not dismissing Soleil’s tortious-interference claim.

F. Disposition of Sole Issue on Appeal

       Having determined that the trial court erred by failing to dismiss Soleil’s claims

for defamation, business disparagement, and tortious interference, we hold that the

trial court erred by denying Rogers’s and RRK’s motions to dismiss and sustain their

sole issue.

                                    V. Conclusion

       Having sustained Rogers and RRK’s sole issue after determining that they were

entitled to dismissal under the TCPA, we reverse the trial court’s denial of Rogers’s

and RRK’s motions to dismiss and remand this case to the trial court for further

proceedings consistent with this opinion. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.009.

                                                       /s/ Dabney Bassel

                                                       Dabney Bassel
                                                       Justice

Delivered: September 26, 2019


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Appendix




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