                                 Fourth Court of Appeals
                                         San Antonio, Texas
                      CONCURRING AND DISSENTING OPINION
                                             No. 04-17-00160-CV

      ROBERT B. JAMES, DDS, INC.; Robert B. James, DDS, Individually; Jean James,
                   Individually; and Alexis Mei Pyles, Individually,
                                      Appellants

                                                        v.

                                        Cassandra J. ELKINS, DDS,
                                                 Appellee

                      From the 37th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2016CI19860
                             Honorable Karen H. Pozza, Judge Presiding

Opinion by: Irene Rios, Justice
Concurring and Dissenting Opinion by: Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: May 30, 2018

           I concur in the portions of the majority opinion and judgment reversing the trial court’s

order and rendering judgment in favor of appellants Robert B. James, DDS, Inc., A Texas

Corporation, Robert B. James, DDS, Individually, Jean James, Individually, 1 and Alexis Mei

Pyles, Individually. However, because I believe the trial court erred in refusing to grant, in their

entirety, the motions to dismiss filed by appellants, I respectfully dissent to the portions of the


1
  For the remainder of the opinion, any reference to “James” refers collectively to appellants Robert B. James, DDS,
Inc., A Texas Corporation, Robert B. James, DDS, Individually, Jean James, Individually. When these appellants are
referenced individually, I refer to them as “the practice,” “Dr. James,” and “Jean.”
Concurring and Dissenting Opinion                                                    04-17-00160-CV


majority opinion and judgment affirming the trial court’s order. I would reverse the trial court’s

order of dismissal in its entirety, render judgment dismissing the claims for defamation, business

disparagement, intentional infliction of emotional distress, and conspiracy against all appellants,

and remand the matter for a determination of attorneys’ fees and costs.

                                          BACKGROUND

        Dr. James operated a pediatric dental practice in San Antonio, Texas. In 1991, he hired

Dr. Elkins, a licensed pediatric dentist, to work in his practice. The parties agree they signed a

written contract (“the Contract”). Dr. Elkins alleges the terms of her employment required that,

among other things, she be paid a percentage of her gross production. This allegation is disputed

by Dr. James and the other appellants, who contend she was to be paid a percentage of her net

production, i.e., a percentage of collections. To collect payment, Dr. Elkins would submit a

commission-payment request based on her production. To allow her to submit the information,

Dr. Elkins had access to the practice’s receivables. After calculating her percentage of production,

and subtracting expenses and prior payments, Dr. Elkins would submit her commission statement

to the practice’s payroll provider. Dr. James would then sign her paycheck.

        It is undisputed that over the course of Dr. Elkins’s employment, Dr. James increased her

managerial responsibilities with the hope that Dr. Elkins would ultimately purchase the practice

when he retired. In 2014, they began discussing that prospect. However, because there was a

disagreement over the valuation of the practice, in November 2014, Dr. Elkins declined the

proffered purchase. According to Dr. James, he then decided to market the practice to other

potential purchasers. To that end, according to Dr. James, he asked his wife Jean James to begin

organizing the practice’s business records in order to market it for sale. Jean claimed that when

she began reviewing the books and records, she discovered Dr. Elkins had submitted and received



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Concurring and Dissenting Opinion                                                                     04-17-00160-CV


payments based on gross production and had charged write-offs against Dr. James’s production as

opposed to her own. Jean brought these issues to Dr. James’s attention.

         Dr. James claimed that thereafter, he instructed Jean and an administrator for the practice,

Alexis Mei Pyles, to investigate Dr. Elkins’s activities with regard to the practice’s finances.

However, Dr. Elkins alleged the purpose of the investigation was retaliatory and based on her

refusal to purchase the practice. She claimed the goal of the investigation was to permit the

practice to submit an insurance claim for employee theft to the practice’s insurance carrier,

Travelers Casualty Insurance Company of America, in hopes of procuring a payment “in excess

of $500,000.00.”

         According to Jean and Pyles, they reviewed practice financial documents for a three-year

period — from 2011 through 2014, and interviewed current and former employees as well as other

relevant witnesses. They claimed their investigation showed Dr. Elkins had been overpaid by

more than $300,000.00 during the 2011–2014 period because, among other financial misconduct,

she had submitted payment requests based on a percentage of gross production as opposed to the

contractually mandated net production. 2               At Dr. James’s behest, Pyles prepared a report

summarizing the findings made by Pyles and Jean during their investigation. This report was

entitled “Fraud Examination Report” (“FRE”).

         Dr. James claimed that as a result of the investigative findings, he terminated Dr. Elkins in

January 2015. The practice submitted a claim to Travelers, which included a copy of the FRE.

Travelers paid the practice $25,000.00 — policy limits. In addition, Dr. James authorized Jean


2
  In the report, Pyles stated that not only had Dr. Elkins committed payroll fraud for a minimum of three years in the
sum of more than $300,000.00, she had also: (1) breached her confidentiality agreement with the practice by making
unauthorized copies of documents, removing financial information, and discussing practice information with
individuals outside of the practice; (2) attempted to lure a practice dentist and other practice employees away from the
practice; (3) committed theft of petty cash of at least $18,000.00; (4) removed practice documents from the building:
(5) tampered with and changed a password to a practice video camera; and (6) added her name to Dr. James’s personal
credit card without his permission and purchased items with the card that were not for the practice.

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Concurring and Dissenting Opinion                                                                   04-17-00160-CV


and Pyles to contact the San Antonio Police Department (“SAPD”) about the alleged financial

improprieties; Dr. Elkins claimed “upon information and belief” that Travelers required the matter

be reported to law enforcement. SAPD prepared a police report. Dr. James, Jean, and Pyles

provided written statements to SAPD. The record also shows Jean spoke with representatives from

the Bexar County District Attorney’s Office, urging that Dr. Elkins be prosecuted. Ultimately, Dr.

Elkins was indicted in November 2016 for two counts of misapplication of fiduciary property.

         In January 2017, and as is relevant to this appeal, Dr. Elkins sued the practice, Dr. James,

Jean, and Pyles for defamation, business disparagement, intentional infliction of emotional distress

(“IIED”), and conspiracy. 3 Dr. Elkins’s claims were based on statements made in the FRE report

and to SAPD and Travelers regarding Dr. Elkins’s alleged malfeasance. In total, Dr. Elkins sought

compensatory damages of more than $11,000,000.00 and punitive damages of almost

$35,000,000.00. In response to the lawsuit, Dr. James, Jean, and the practice filed a partial motion

to dismiss pursuant to section 27.003 of the TCPA in which they sought dismissal of Dr. Elkins’s

claims for defamation, business disparagement, and intentional infliction of emotional distress.

See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West 2015). Pyles filed a separate motion

to dismiss under the TCPA. See id. She too sought to dismiss the claims for defamation, business

disparagement, IIED, as well as conspiracy — the only claims lodged against her. In both motions,

the parties alleged Dr. Elkins’s claims should be dismissed because they fell within the TCPA, and

Dr. Elkins had failed to produce clear and specific evidence on the elements of her claims.

         After Dr. Elkins filed a response to the motions, the trial court held a hearing. Thereafter,

the trial court denied both motions to dismiss. James and Pyles asked the trial court to reconsider


3
  Dr. Elkins also asserted claims for breach of contract against the practice, and negligent misrepresentation against
the practice and Dr. James. She also brought suit against Travelers and the investigative firm it hired to investigate
the claim, alleging negligence, negligent misrepresentation, breach of contract, and violations of the Texas Deceptive
Trade Practices Act and the Texas Insurance Code.

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Concurring and Dissenting Opinion                                                      04-17-00160-CV


based on newly discovered evidence — specifically the previously misplaced employment contract

between the practice and Dr. Elkins. According to the movants, the Contract was discovered when

the dentist who ultimately purchased the practice in May 2015 was cleaning out items left behind

by Dr. James. In response, Dr. Elkins alleged the contract was a forgery. The trial court denied

the motion to reconsider. James perfected an appeal, as did Pyles. See id. § 51.014(a)(12) (West

Supp. 2017) (permitting interlocutory appeals from orders denying motions to dismiss filed under

the TCPA).

                                               ANALYSIS

        On appeal, James and Pyles contend the trial court erred in denying their motions to

dismiss. They argue the trial court should have granted their motions because: (1) the claims

asserted by Dr. Elkins fall within the TCPA; and (2) Dr. Elkins failed to produce clear and specific

evidence establishing a prima facie case on the elements of her claims. James and Elkins also

argue that if this court reverses the trial court’s order, it must remand the matter to the trial court

for an award of attorneys’ fees and costs. In addition, in her brief, Dr. Elkins raises issues

challenging the trial court’s denial of her motion for discovery and motion for continuance in the

event. She contends that if the court reverses the trial court’s order, it should address these issues.

                                    Motion to Dismiss Under the TCPA

    1. Applicable Law

        The stated purpose of the TCPA 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 the same time, protect rights of a person to file

meritorious lawsuits for demonstrable injury. Id. § 27.002. The TCPA was meant to “protect

citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public



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Concurring and Dissenting Opinion                                                              04-17-00160-CV


concern.” In re Lipsky, 460 S.W.3d 579, 584, 586 (Tex. 2015) (orig. proceeding) (citing House

Comm. On Judiciary & Civil Jurisprudence, Bill Analysis, Tex. HB 2973, 82nd Leg., R.S. (2011)).

To that end, the TCPA provides for the expedited dismissal of a legal action that implicates a

defendant’s First Amendment rights, including the right of free speech, the right to petition, and

the right of association, when the plaintiff cannot establish a prima facie case on her claims. Id. at

586; Avery v. Baddour, No. 04-16-00184-CV, 2016 WL 4208115, at *2 (Tex. App.—San Antonio

Aug. 10, 2016, pet. denied); see TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b), (c).

The Legislature created a burden-shifting mechanism within the statute to expedite the dismissal

of claims covered therein. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017)

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.003; Lipsky, 460 S.W.3d at 586). The filing of a

motion to dismiss by “a defendant who believes that the lawsuit responds to the defendant’s valid

exercise of First Amendment rights” triggers this mechanism. Lipsky, 460 S.W.3d at 586.

        The first step of the mechanism requires the movants to show by a preponderance of the

evidence that the plaintiff’s claims are based on, relate to, or are in response to the exercise of the

movants’ right to free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(b); Coleman, 512 S.W.3d at 898; Lipsky, 460 S.W.3d at 586. The TCPA

defines “exercise of the right of free speech” as “a communication 4 made in connection with a

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

concern” includes issues 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 market place. Id. § 27.001(7). The “exercise of the right to petition”

means communications relating to an array of judicial, administrative, and other governmental


4
 A “communication” is defined as the making or submitting of a statement or document in any form — oral, visual,
written, audiovisual, or electronic. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1).

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Concurring and Dissenting Opinion                                                       04-17-00160-CV


proceedings. Lipsky, 460 S.W.3d at 586–87 n.5; see TEX. CIV. PRAC. & REM. CODE ANN. §

27.001(4). The “exercise of the right of association” refers to a communication between those

“who join together to collectively express, promote, pursue, or defend common interests.” TEX.

CIV. PRAC. & REM. CODE ANN. § 27.001(2).

        If the movants are able to demonstrate the plaintiff’s claims implicate one or more of the

stated First Amendment rights, the burden shifts to the plaintiff — the party who brought the action

— to establish “by clear and specific evidence a prima facie case for each essential element of”

each claim in question. Id. at § 27.005(c); see Lipsky, 460 S.W.3d at 587; Coleman, 512 S.W.3d

at 899. If the plaintiff is unable to meet this burden, the trial court must dismiss her claims. Lipsky,

460 S.W.3d at 587. If the plaintiff is able to establish a prima facie case for each essential element

of her claims, the burden then shifts back to the movants to prove by a preponderance of the

evidence each essential element of a valid defense to the plaintiff’s claims. TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(d); see Coleman, 512 S.W.3d at 899.

    2. Standard and Scope of Review

        Courts conduct a de novo review of a trial court’s denial of a TCPA motion to dismiss.

Avery, 2016 WL 4208115, at *2; Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL 4273265,

at *2 (Tex. App.—San Antonio July 15, 2015, no pet.) (mem. op.). In other words, courts review

de novo whether the parties met their respective burdens under the TCPA. Tervita, LLC v.

Sutterfield, 482 S.W.3d 280, 282 (Tex. App.—Dallas 2015, pet. denied); Reyna, 2015 WL

4273265, at *2; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b), (c), (d). In making this

determination, a court must “consider 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(a); Lipsky, 460 S.W.3d at 587.



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Concurring and Dissenting Opinion                                                       04-17-00160-CV


        With regard to the plaintiff’s burden to establish “by clear and specific evidence a prima

facie case” for the essential elements of her claims, the TCPA defines neither “prima facie case”

nor “clear and specific evidence.” However, unlike “clear and specific evidence,” a “prima facie

case has a traditional legal meaning.” Lipsky, 460 S.W.3d at 590. It refers to the “minimum

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

Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam)).

As for “clear and specific evidence,” the supreme court has now held that it requires more than

mere notice pleading, but “does not impose an elevated evidentiary standard or categorically reject

circumstantial evidence,” i.e., it does not impose a higher burden than that required at trial. Id. at

590–91.

    3. Did James and Pyles Prove the TCPA Applies?

        As set out above, James and Pyles, as movants, were required to establish by a

preponderance of the evidence that Dr. Elkins’s claims are based on, relate to, or are in response

to the exercise of their right to free speech, right to petition, or right of association. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b); Coleman, 512 S.W.3d at 898; Lipsky, 460

S.W.3d at 586. I contend both James and Pyles met this burden, establishing the statements relied

upon by Dr. Elkins for her defamation, business disparagement, and other claims fall within the

TCPA.

        James and Pyles asserted that all of Dr. Elkins’s claims challenged in their respective

motions to dismiss relate to their exercise of their First Amendment rights to free speech, i.e., their

communications were made in connection with a matter of public concern. TEX. CIV. PRAC. &

REM. CODE ANN. §§ 27.001(3). More specifically, they asserted, and argue on appeal, the

statements in the FRE report and to SAPD and Travelers about Dr. Elkins’s alleged theft and



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Concurring and Dissenting Opinion                                                                    04-17-00160-CV


misapplication of practice property were related to community well-being and the government. Id.

§ 27.001(7)(B), (C). 5

         The Texas Supreme Court has addressed what constitutes a matter of public concern. See

Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017). According to the court, speech is a matter

of public concern when the statements at issue can “be fairly considered as relating to any matter

of political, social, or other concern to the community.” Id. (quoting Snyder v. Phelps, 562 U.S.

443, 453 (2011)). Matters of public concern include, among other things, commission of crime.

Id. Thus, statements made for the purpose of reporting the commission of criminal offenses are

related to community well-being or the government. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a), 27.005(b); Coleman, 512 S.W.3d at 898; Lipsky, 460 S.W.3d at 586. The same is true

when the report concerns acts that might subject the perpetrator to civil liability. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b); Coleman, 512 S.W.3d at 898; Lipsky, 460

S.W.3d at 586. The gravamen of Dr. Elkins’s claims are that James and Pyles made false

statements to SAPD and Travelers that subjected her to criminal liability — and could subject her

to civil liability. Reports that an individual has committed acts that might subject them to criminal

or civil liability are issues relating to both community well-being and the government, particularly

given that in Coleman, the supreme court held the TCPA does not require that the statements that

form the basis of a plaintiff’s claims specifically mention the public concern at issue, nor does it

require more than a “tangential relationship” to the specific public concern. 512 S.W.3d at 900.

The holding in Coleman suggests the TCPA’s definition of exercise of free speech — as well as


5
  The majority contends James only sought dismissal of Elkins’s claims as they related to the statements to SAPD. I
believe the motion includes Elkins’s claims based on the report to Travelers. For example, in the motion, James states
the “investigative findings” were relayed not only to law enforcement authorities, but to Travelers. The motion
references the insurance claim submitted to Travelers and its conclusion that a covered loss had occurred. In addition,
the motion states the conduct complained of by Elkins “is the report to SAPD, discussions with state prosecutors, and
the filing of an insurance claim.” Thus, James recognized Elkins’s claims were based on both the report to SAPD and
the FRE and sought relief under the TCPA based on both.

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Concurring and Dissenting Opinion                                                                 04-17-00160-CV


exercise of petition and association — extend beyond the parameters of expression protected by

the First Amendment. See id. Thus, a court must not read the TCPA’s definitions of “exercise of

the right of free speech” and “matter of public concern” more narrowly than the ordinary meaning

of the words as set forth in the statute. See id.

        The statements made by James and Pyles were communications under the TCPA because

they were oral or written. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1). The statements

fall within the “exercise of the right of free speech” as a “matter of public concern” because they

involved Dr. Elkins’s alleged commission of numerous acts that could subject her to either criminal

or civil liability, which are issues “in connection with” and “related to” community well-being and

government. See id. §§ 27.001(3), 27.001(7)(B), (C); see also Watson v. Hardman, 497 S.W.3d

601, 607 (Tex. App.—Dallas 2016, no pet.) (recognizing that statements regarding misconduct or

crime are statements relating to “community well-being”). Therefore, I believe James and Pyles

successfully established the TCPA’s applicability to Dr. Elkins’s claims under the free-speech

prong of the statute. 6 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), 27.003(a).

        Neither below nor in this court does Dr. Elkins respond to the arguments of James and

Pyles with regard to the applicability of the TCPA as it relates to the exercise of the right to free

speech, right to petition, and right to associate. Rather, as the majority asserts, Dr. Elkins argues

her claims are specifically exempt from the statute under the TCPA’s insurance exemption

provision. See id. § 27.010(d). That section states the TCPA “does not apply to a legal action



6
  James and Pyles alternatively argue the statements relied upon by Dr. Elkins in support of her claims are likewise
subject to the TCPA based on the exercise of the right to petition and right to association. See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.001(2), (4). Because I believe the communications were made in the exercise of the right of
free speech, these contentions need not be addressed. See Coleman, 512 S.W.3d at 901–02; but see Ford v. Bland,
No. 14-15-00828-CV, 2016 WL 7323309, at *1 (Tex. App.—Houston [14th Dist.] Dec. 15, 2016, no pet.) (holding
statements to police regarding incidences of perceived wrongdoing are exercise of right to petition under TCPA);
Tervita, LLC, 482 S.W.3d at 287 (suggesting claims based on communications between insured and insurer regarding
claim would fall within TCPA right to associate).

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Concurring and Dissenting Opinion                                                   04-17-00160-CV


brought under the Insurance Code or arising out of an insurance contract.” Id. The burden is on

Dr. Elkins to prove this statutory exemption. See Tervita, LLC, 482 S.W.3d at 282.

        Dr. Elkins argues the exemption is applicable because James and Pyles made statements to

Travelers — the practice’s insurance carrier — when the practice sought recovery under its policy

for Dr. Elkins’s alleged misappropriation of property. She also points out that she sued Travelers

for violations of the Texas Insurance Code. Dr. Elkins therefore concludes her legal action was

brought under the Insurance Code or arose out of an insurance contract, exempting her claims from

the TCPA.

        Contrary to the majority, I believe this issue was resolved by the Dallas Court of Appeals

in Tervita, LLC v. Sutterfield. In that case, an injured employee filed a claim for worker’s

compensation benefits, but his claim was denied. Id. at 281–82. At a contested case hearing before

the Texas Department of Insurance, a Tervita representative testified. Id. at 282. The Department

ruled in Tervita’s favor. Id. Thereafter, the employee sued Tervita for an alleged violation of the

Texas Labor Code, negligent misrepresentation, and conspiracy. Id. Tervita filed a motion to

dismiss pursuant to section 27.003(b) of the TCPA, but it was denied by the trial court. Id.

        On appeal, the Dallas Court of Appeals held Tervita proved the employee’s claims were

based on Tervita’s exercise of a protected right under the TCPA. Id. at 284–85. However, relying

on section 27.010(d), the employee argued his claims against Tervita were exempt from the TCPA

because the statute does not apply to claims under the Insurance Code or that arise out of an

insurance contract. Id. According to the employee, he could not have filed suit under the Labor

Code but for the fact that Tervita had elected to obtain worker’s compensation insurance. Id.

Therefore, according to the employee, his claims arose out of an insurance contract between his

employer and the insurance carrier. Id. The appellate court rejected this argument. Id. at 285–86.



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Concurring and Dissenting Opinion                                                   04-17-00160-CV


        The Dallas Court of Appeals held the employee’s suit was neither a legal action brought

under the Insurance Code, nor did it arise out of an insurance contract. Id. After reviewing the

employee’s petition, the court held it showed claims against Tervita under the Labor Code, which

prohibits the discharge or discrimination against a worker who files a worker’s compensation claim

or institutes a proceeding under the Texas Worker’s Compensation Act, and under the common

law for conspiracy. Id. at 286. The petition did not include a claim against Tervita under the

Insurance Code, and the employee did not seek to recover damages from Tervita based on the

contract between it and the carrier. Id. Accordingly, the employee’s suit did not fall within the

insurance exemption set out in section 27.010(d). Id. I find Tervita persuasive.

        I believe Dr. Elkins’s argument with regard to section 27.010(d) is essentially the same as

that urged by the employee in Tervita, and rejected by the appellate court. I have reviewed Dr.

Elkins’s petition and she did not assert claims against James or Pyles under the Texas Insurance

Code, nor does she seek recovery from them based on the insurance contract between the practice

and Travelers. Rather, the only claims asserted against James or Pyles arise under common law

— defamation, business disparagement, intentional infliction of emotional distress, and

conspiracy. Thus, her claims against James and Pyles — the only movants under the TCPA —

were not brought under the Insurance Code, nor do they arise out of an insurance contract. See id.

at 285–86. I would hold that just as the employee’s claims in Tervita were not subject to the

insurance exemption in section 27.010(d), neither are Dr. Elkins’s claims. See id.; see also TEX.

CIV. PRAC. & REM. CODE ANN. § 27.010(d).

        In sum, I would hold that if the trial court denied the motions to dismiss because it

determined Dr. Elkins’s claims were not subject to the TCPA, such decision was erroneous.

Because I believe James and Pyles established the applicability of the TCPA, the burden shifted



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   Concurring and Dissenting Opinion                                                    04-17-00160-CV


   to Dr. Elkins to establish “by clear and specific evidence a prima facie case” for the essential

   elements of the claims challenged in the motions to dismiss — defamation, business

   disparagement, IIED, and conspiracy. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c);

   Lipsky, 460 S.W.3d at 587; Coleman, 512 S.W.3d at 899. I do not believe she met her burden with

   regard to any of her claims.

4. Did Dr. Elkins Establish a Prima Facie Case?

           James and Pyles argue Dr. Elkins did not establish each element of her claims by clear and

   specific evidence. As discussed previously, establishing a prima facie case by clear and specific

   evidence requires more than mere notice pleading. Lipsky, 460 S.W.3d 590–91. Direct evidence

   is not required; rather, circumstantial evidence and rational inferences may be sufficient to meet

   the plaintiff’s burden. Id. at 489–90. However, conclusory statements are not probative, and “bare,

   baseless opinions” are not “a sufficient substitute for clear and specific evidence. Id. at 492;

   Quintanilla v. West, 534 S.W.3d 34, 47 (Tex. App.—San Antonio 2017, pet. filed) (quoting E.I.

   DuPont, 136 S.W.3d at 223–24).

           a. Defamation

           To establish a claim for defamation, a plaintiff must prove the defendant (1) published a

   false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with

   the requisite degree of fault, and (4) damages, in some cases. Lipsky, 460 S.W.3d at 593 (citing

   WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). The plaintiff’s status determines

   the degree of fault the plaintiff must prove — a private person need only prove negligence, but a

   public figure or official must prove actual malice. Id. However, even a private person must prove

   actual malice when her claims raise a qualified privilege. Espinosa v. Aaron’s Rents, Inc., 484

   S.W.3d 533, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see Shell Oil Co. v. Writt, 464



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Concurring and Dissenting Opinion                                                     04-17-00160-CV


S.W.3d 650, 655 (Tex. 2015); Gonzales v. Levy Strauss & Co., 70 S.W.3d 278, 282 (Tex. App.—

San Antonio 2002, no pet.). “‘Actual malice’” in this context means that the statement was made

with knowledge of its falsity or with reckless disregard for its truth.” Id. (citing Huckabee v. Time

Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000)). It does not mean bad motive or ill will;

rather, it simply means the defendant entertained serious doubts about the truth of the publication.

See Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016); Hotz v. Miller, 361 S.W.3d 707, 713

(Tex. App.—Tyler 2012, pet. denied).

        James and Pyles argue they are entitled to a qualified privilege in this case, mandating that

Dr. Elkins prove the allegedly defamatory statements were made with actual malice as opposed to

negligence. They assert Dr. Elkins failed to meet her burden to produce clear and specific evidence

with regard to this element. James and Pyles contend their internal communications, as well as

those to SAPD and Travelers were subject to a qualified or conditional privilege because they were

made in the course of an investigation following a report of wrongdoing by Dr. Elkins. See

Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 647 (Tex. 1995); Espinosa, 484 S.W.3d

at 543; Gonzales, 70 S.W.3d at 282. Whether a qualified privilege exists is a question of law.

Burbage v. Burbage, 447 S.W.3d 249, (Tex. 2014); Yeske v. Piazza Del Arte, Inc., 513 S.W.3d

652, 664 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

        A qualified privilege attaches to statements made in the course of an investigation

following a report of employee wrongdoing. Randall’s Food Mkts., 891 S.W.2d at 646; Espinosa,

484 S.W.3d at 543; Gonzales, 70 S.W.3d at 282. “The privilege remains intact as long as

communications pass only to persons having an interest or duty in the matter to which the

communications relate.” Randall’s Food Mkts., 891 S.W.2d at 646. The privilege is defeated only




                                                - 14 -
Concurring and Dissenting Opinion                                                    04-17-00160-CV


by proof the statements at issue were motivated by actual malice that existed at the time the

statements were made. Id.

        Both James and Pyles pled the existence of a qualified privilege. Pursuant to the TCPA,

the burden to establish a valid defense to a claim rests upon the movant. TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(d). To the extent a qualified privilege is an affirmative defense under the

TCPA, and assuming James and Pyles were required to prove their investigation privilege by a

preponderance of the evidence before Dr. Elkins was required to prove actual malice, I believe

James and Pyles met their burden. See id. at §§ 27.005(c), (d); see also Burbage, 447 S.W.3d at

254 (holding that qualified privilege operates as affirmative defense in nature of confession and

avoidance, and defendant bears burden of proving privilege unless plaintiff’s petition affirmatively

demonstrates privilege; if proven or demonstrated, burden shifts to plaintiff to prove actual

malice).

        The undisputed evidence shows Jean and Pyles conducted an investigation into Dr. Elkins’s

conduct — financial and otherwise — at Dr. James’s behest after Jean had reported her belief that

Dr. Elkins had submitted improper payroll requests, i.e., payroll requests made based on gross as

opposed to net production, and inaccurate write-offs. Dr. Elkins contended the investigation was,

at best, a shoddy pretext, including only four years of her employment — 2011 through 2014 —

and was merely a ruse to retaliate against her when she declined to purchase the practice. However,

she does not dispute that an investigation was conducted. At the conclusion of the investigation,

believing they had uncovered proof of financial malfeasance and other improprieties, reports and

statements about the alleged malfeasance were submitted to SAPD and Travelers. It is these

statements upon which Dr. Elkins bases her claims.




                                               - 15 -
Concurring and Dissenting Opinion                                                      04-17-00160-CV


        Dr. Elkins argues the privilege does not apply because by the time the statements were

made to SAPD and Travelers, the investigation had been completed. Dr. Elkins fails to understand

the scope of the privilege. The supreme court specifically held the investigation privilege remains

intact as long as the statements that are alleged to be defamatory pass to those with a duty or

interest in the matter to which the statements relate. Randall’s Food Mkts., 891 S.W.2d at 646.

Here, the statements were passed to SAPD, which obviously had a duty to investigate claims of

criminal conduct, and Travelers, which undoubtedly had an interest in the matter given that the

practice sought to recover under its policy with Travelers based on Dr. Elkins’s alleged

misconduct. Because the statements upon which Dr. Elkins relied for her claims were passed only

to those with a duty or interest in her alleged wrongdoing, the investigative privilege remained

intact for purposes of the reports and statements to SAPD and Travelers. See id. This court has

recognized that statements made to an interested or duty-bound entity following the conclusion of

an investigation are still subject to the privilege. See Gonzales, 70 S.W.3d at 282.

        In Gonzales, the plaintiffs sued their employer for violations of the Texas Right to Work

Act and defamation after the employer fired them for poor judgment and violation of company

rules. Id. at 280–81. The plaintiffs alleged their employer defamed them in connection with their

termination. Id. The employer claimed it was entitled to judgment on the defamation claim

because any allegedly defamatory statements were privileged because they were made as part of

an investigation into the employees’ wrongdoing, and there was no evidence of actual malice. Id.

at 281–82. The trial court granted summary judgment in favor of the employer, and the employees

appealed. Id. at 281.

        With regard to the defamation claim, we began our analysis in Gonzales by reciting the

law regarding the qualified privilege relating to investigative statements as set forth in Randall’s



                                               - 16 -
Concurring and Dissenting Opinion                                                   04-17-00160-CV


Food Mkts. Id. at 282. Therein, we noted the statements relied upon by the employees for the

defamation claim were made to a company supervisor, human resources director, regional director,

as well as the Texas Workforce Commission and the Frick Company, which handled the

unemployment claim on the company’s behalf. Id. (emphasis added). We held that because the

allegedly defamatory statements “were made only to those involved in the process of investigating

the incident and [the] unemployment claims,” the statements were qualifiedly privileged. Id. And

because the employees failed to raise a fact issue on actual malice, summary judgment in favor of

the employer was proper. Id. at 283.

        Gonzales demonstrates allegedly defamatory statements are qualifiedly privileged to all of

those involved in investigating the incident based either on a duty — the Texas Workforce

Commission — or common interest — the company handling the unemployment claims for the

employer. See id. at 281–83. The privilege is not limited to statements made during an employer’s

actual investigation, but extends to the reporting of the investigative results to those who have a

duty or interest therein. See id. Thus, I would hold the statements made by James and Pyles to

SAPD and Travelers were subject to a qualified privilege as both had an interest or duty in Dr.

Elkins’s alleged misconduct. See id. Because I believe James and Pyles proved their defense of

qualified privilege by a preponderance of the evidence, Dr. Elkins had to establish a prima face

case by clear and specific evidence with regard to the element of actual malice. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.005(c), (d).

        In support of actual malice, Dr. Elkins asserted in her pleadings and affidavit that the

investigation conducted by Jean and Pyles was shoddy and incomplete. She claimed that if they

had reviewed the financial documents applicable to her entire tenure with the practice — or asked

her, they would have discovered she frequently submitted paperwork for payment based on gross



                                               - 17 -
Concurring and Dissenting Opinion                                                      04-17-00160-CV


as opposed to net production. In support, she provided documents establishing she submitted

paperwork seeking payment based on gross production throughout her tenure with the practice,

and that she was paid based on those submissions. Thus, according to Dr. Elkins, if Jean and Pyles

had reviewed more than three years of documents, they would have discovered she had always

been paid based on gross production, and because they did not, their statements were made with

reckless disregard for the truth, i.e., actual malice. She also points out they had a motive to conduct

a negligent investigation — retaliation for her refusal to purchase the practice at the price desired

by Dr. James.

        However, actual malice does not focus on what the defendant should have done or failed

to do. Tex. Campaign for the Env’t v. Partners Dewatering Int’l, LLC, 485 S.W.3d 184, 201 (Tex.

App.—Corpus Christi 2016, no pet.). Neither is the focus on what a defendant would have known

or discovered if he had researched the matter. Id. Rather, the focus is on whether the defendant

subjectively entertained significant doubt about the truth of his statements when they were made.

Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002). Neither an error in judgment nor negligence

is insufficient to establish reckless disregard. Forbes Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 171 (Tex. 2003); Casso v. Brand, 776 S.W.2d 551, 563 (Tex. 1989).

        Moreover, Texas courts have recognized that “a failure to fully investigate is not evidence

of actual malice.” E.g., Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005) (quoting Bentley, 94

S.W.3d at 596). Lack of care or injurious motive alone are not proof of actual malice. Bentley, 94

S.W.3d at 596. Moreover, misunderstanding ambiguous facts is not actual malice, although

improbable statements made on obviously dubious information may be. Id.

        In this case, for proof of malice, Dr. Elkins relies on the allegedly incomplete investigation

and the alleged motive of retaliation. This is insufficient to establish actual malice. The financial



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Concurring and Dissenting Opinion                                                     04-17-00160-CV


records for 2011–2014 — the records relied on by James and Pyles — showed payments to Dr.

Elkins based on gross production. The Contract defined “production” as the fee charged for the

service by the practice. Per the terms of the Ccontract, Dr. Elkins was to be paid “production at a

reduced rate” for any procedures she did that were subject to a “reduced rate for whatever reason.”

James and Pyles certainly could have interpreted this to mean net production. Dr. Elkins claimed

her signature on the Contract produced by James and Pyles was a forgery, but she did not produce

any evidence James and Pyles knew or should have known it was a forgery. Thus, the information

relied on by James and Pyles was not “obviously dubious.” See Bentley, 94 S.W.3d at 596.

        Dr. Elkins’s claim of an inadequate investigation is no evidence of malice. Dr. Elkins

provided no evidence that James or Pyles purposefully avoided the truth during the investigation.

It is undisputed they reviewed four years of financial documents and interviewed numerous

witnesses inside and outside the practice. Dr. James advised both Jean and Pyles when they came

to him that Dr. Elkins was to be paid based on net production, and Jean and Pyles relied on that

statement. Even if Dr. James’s statement was false, there is no evidence the aged dentist knew it

was false — and the Contract belies this, and there was no reason for Jean and Pyles not to rely on

his statement. See DR Partners v. Floyd, 228 S.W.3d 493, 498 (Tex. App.—Texarkana 2007, pet.

denied) (holding actual malice cannot be inferred from falsity of statement alone).

        The numerous documents Dr. Elkins relies on show she was paid for certain periods based

on gross as opposed to net production (she did not include documents for every pay period during

her tenure), but this does not constitute evidence of purposeful avoidance.             Rather, the

documentation merely establishes that for many pay periods Dr. Elkins was paid based on gross

production, not that she was entitled to payment on that basis. The other evidence she relies on

are her conclusory statements that she had been paid based on gross production, but conclusory



                                               - 19 -
Concurring and Dissenting Opinion                                                                       04-17-00160-CV


statements are not probative, and “bare, baseless opinions” are not “a sufficient substitute for clear

and specific evidence.” Lipsky, 460 S.W.3d at 492; Quintanilla, 534 S.W.3d at 47. In sum, Dr.

Elkins failed to establish “by clear and specific evidence a prima facie case for [the] essential

element of” actual malice. See id. at § 27.005(c); Lipsky, 460 S.W.3d at 587; Coleman, 512 S.W.3d

at 899. Accordingly, I believe the trial court erred in refusing to dismiss Dr. Elkins’s defamation

claims against James and Pyles.

         b. Business Disparagement

         James and Pyles next contend Dr. Elkin’s failed to produce clear and specific evidence on

certain elements of Dr. Elkins’s business disparagement claim.                          To prevail on a business

disparagement claim, a plaintiff must establish (1) the defendant published false and disparaging

information about the business (2) with actual malice, (3) without privilege, (4) that resulted in

special damages. Lipsky, 460 S.W.3d at 592. James and Pyles argue Dr. Elkin’s failed to meet

her burden with regard to the elements of actual malice and privilege. 7

         As noted above, I believe Dr. Elkins failed to establish by clear and specific evidence a

prima facie case on the element of actual malice with regard to her defamation claim. It naturally

follows that her proof is likewise deficient with regard to the business disparagement claim. See

Forbes Inc., 124 S.W.3d at 171.

         Moreover, contrary to the burden in her defamation claim, it was Dr. Elkins’s burden to

establish an absence of privilege to avoid dismissal of her business disparagement claim. See

Lipsky, 460 S.W.3d at 592.                James and Pyles proved their investigative privilege by a




7
  A business disparagement claim is similar to a defamation claim. Forbes Inc., 124 S.W.3d at 170. They differ in
that defamation protects the personal reputation of a person, whereas business disparagement protects economic
interest. Id. The actual malice standard for both torts is that same, i.e., the plaintiff must establish the defendant made
the statement or statements at issue “with knowledge that it was false or with reckless disregard of whether it was true
or not.” Id. at 171.

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Concurring and Dissenting Opinion                                                    04-17-00160-CV


preponderance of the evidence. Dr. Elkins has not established the absence of the privilege given

her only argument was that at the time the statements were made, the investigation had concluded.

See Gonzales, 70 S.W.3d at 281–83.

        In my opinion, Dr. Elkins failed to establish by clear and specific evidence a prima facie

case on the elements of actual malice and absence of privilege with regard to her claim for business

disparagement. I would therefore hold the trial court erred in denying the motions to dismiss Dr.

Elkins’s claims for business disparagement as to James and Pyles.

        c. Intentional Infliction of Emotional Distress

        James and Pyles first argue the trial court erred in refusing to dismiss Dr. Elkins’s claim

for IIED because IIED is a “gap-filler” cause of action that is unavailable because the gravamen

of Dr. Elkins’s complaint in this case sounds in defamation. In other words, they argue that

because her IIED claim is based on the same conduct as her defamation claim — and it undeniably

is — her IIED claim fails as a matter of law. I disagree.

        This court addressed this same argument in Spencer v. Overpeck, No. 04-16-00565-CV,

2017 WL 993093, at *4–*5 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied) (mem. op.). In

Spencer, we held the “gap-filler” argument was premature in the context of an appeal from the

denial of a motion to dismiss under the TCPA. Id. at *4; but see Bilbrey v. Williams, No. 02-13-

00332-CV, 2015 WL 1120921, at *13–*14 (Tex. App.—Fort Worth, Mar. 12, 2015, no pet.)

(mem. op.) (holding that because IIED is “gap-filler” claim and factual basis for plaintiff’s IIED

was same as factual basis for defamation claim, plaintiff had not provided “minimum quantum of

evidence necessary to support” IIED claim). In reaching this holding, we relied on the supreme

court’s opinion in Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004). In that

case, the supreme court recognized the “gap-filler” argument does not mean a plaintiff could not



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Concurring and Dissenting Opinion                                                    04-17-00160-CV


establish a prima facie case; only that the claim would be otherwise precluded in light of duplicate

remedies available in other claims. Id. at 447–48. Thus, because a plaintiff’s burden under section

27.005(c) is merely to establish a prima facie case for each element of her claims, any suggestion

that a plaintiff’s claim fails because it is merely a “gap-filler” is premature. Spencer, 2017 WL

993093, at *4–*5; but see Bilbrey, 2015 WL 1120921, at *13–*14. Accordingly, the “gap-filler”

argument does not require that this court reverse the trial court’s denial of the motions to dismiss

with regard to Dr. Elkins’s claim for IIED.

        The “gap-filler” argument is not the only argument presented by James and Pyles with

regard to the IIED claim. They also contend, among other things, that Dr. Elkins failed to establish

“by clear and specific evidence a prima facie case for each essential element of” her IIED claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); see Lipsky, 460 S.W.3d at 587; Coleman, 512

S.W.3d at 899. Specifically, they argue she failed to produce clear and specific evidence of

extreme and outrageous conduct. On this record, I agree.

        “To recover damages for intentional infliction of emotional distress, a plaintiff must

establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was

extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and

(4) the resulting emotional distress was severe. Hoffman-LaRoche Inc., 144 S.W.3d at 445 (citing

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998)); see Pleasant Glade

Assembly of God v. Schubert, 264 S.W.3d 1, 17 n.3 (Tex. 2008). The supreme court has defined

extreme and outrageous conduct as conduct that is “‘so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’” Hoffman-LaRoche Inc., 144 S.W.3d at 445 (quoting

Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting RESTATEMENT (SECOND)                  OF




                                               - 22 -
Concurring and Dissenting Opinion                                                      04-17-00160-CV


TORTS § 46 cmt. d. (1965)). Liability for the tort of IIED does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities. Id. (citing GTE Southwest,

Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999); RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.).

        In Dr. Elkins’s petition, as well as her response to the motions to dismiss, she relied on the

allegedly false statements made by James and Pyles as evidence of extreme and outrageous

conduct. In her petition she specifically stated that “by making the false statements [described in

the petition][James and Pyles] caused her emotional distress.” She further stated the making of

“blatantly false and self-serving statements” was extreme and outrageous. Similarly, in her

response, she claimed that by accusing her of theft and embezzlement — based on the known

falsity of such statements — the defendants’ conduct fell within the category of outrageous and

extreme. Thus, as evidence of extreme and outrageous conduct, Dr. Elkins relied solely on the

allegedly false statements made by James and Pyles to SAPD and Travelers.

        The statements attributed to James and Pyles about Dr. Elkins, as stated in Dr. Elkin’s

petition, can be summarized as follows:

        •   Dr. Elkins committed possible theft;

        •   Dr. Elkins used the practice’s petty cash for personal use;

        •   Dr. Elkins used practice money to pay for family vacations;

        •   Dr. Elkins committed payroll fraud for a minimum of three years;

        •   Dr. Elkins breached her confidentiality agreement by making unauthorized
            copies of documents, stealing financial information, and discussing the practice
            with outsiders;

        •   Dr. Elkins attempted to lure other employees away from the practice;

        •   Dr. Elkins removed practice documents from the office and lied about it;

        •   Dr. Elkins tampered with and changed the password to a video camera
            belonging to the practice; and

                                                - 23 -
Concurring and Dissenting Opinion                                                  04-17-00160-CV




        •   Dr. Elkins added her name to Dr. James’s personal credit card without
            permission.

Texas courts have often held that as a matter of law, the making of defamatory statements — even

if false — is not the type of conduct that can be considered extreme and outrageous for purposes

of an IIED claim. An example that bears a similarity to this case is found in Diamond Shamrock

Ref. & Mkting. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992). In Mendez, an employee sued

his employer for, among other things, IIED after he was terminated. 844 S.W.2d at 198.

According to the employee, his supervisor ordered him to clean up debris in his work area; the

debris included loose nails discarded by carpenters. Id. at 199. The employee was angered by the

assignment, considering it outside the scope of his duties. Id. at 198–99. While cleaning up, the

employee threw some of the nails — the value of which was less than five dollars — into a box

and placed the box into his lunch bag. Id. at 199. When he left for the day, Mendez left the lunch

bag, which contained the nails, near the time clock. Id. A security officer found the bag and the

nails and reported it to management. Id. When confronted by a manager, the employee described

what happened. Id. A manager asserted it appeared as if the employee was stealing, and the

employee was fired. Id. Word of the termination quickly spread, and numerous people —

including potential employers — knew the employee had been terminated for theft. Id. The

employee filed suit alleging numerous causes of action, including IIED. Id. The employee based

his IIED claim not on his termination, but on statements falsely depicting him in the community

as a thief. Id. at 202.

        A jury found in favor of the employee on his IIED claim, but the appellate court found no

evidence to support it. Id. at 199–200. Upon review by the supreme court, that court agreed,

holding that even if the employee’s allegation was true — that his employers made statements to



                                              - 24 -
Concurring and Dissenting Opinion                                                    04-17-00160-CV


fellow employees and the community at large that depicted him as a thief, such conduct was not

sufficiently outrageous to raise a fact issue on the element of extreme and outrageous conduct. Id.

The supreme court held making false allegations of theft fell short of being “beyond all possible

bounds of decency,” atrocious,” and “utterly intolerable in a civilized community.” Id. (quoting

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.).

        Similarly, in Tex. Farm Bureau Mut. Ins. Cos. v. Sears, the supreme court held the conduct

of an insurance company was not extreme and outrageous when it reported to authorities that one

of its agents was involved in misconduct. 84 S.W.3d 604, 611 (Tex. 2002). In Sears, an insurance

company hired an investigator to look into allegation of an alleged kickback scheme involving one

of its agents, Sears. Id. at 606. Although the investigation produced no direct evidence that Sears

was involved in a kickback scheme, the investigator informed the insurance company that Sears

was involved in other suspicious dealings on two particular claims. Id. The insurance company

terminated Sears and turned the results of the investigation over to the Texas Board of Insurance,

the United States Postal Service, the United States Attorney’s Office, the Internal Revenue Service,

and various other federal agencies. Id. In addition, the insurance company attempted to persuade

the insurance board to revoke Sears’s license and to have the IRS investigate him for tax evasion.

Id. at 606–07. Thereafter, Sears sued the insurance company and others, alleging numerous causes

of action, including IIED. Id. at 607. In support of his claim for IIED, Sears relied upon actions

the insurance company took after his termination — reporting the results of its investigation to

federal and state agencies and attempting to have his insurance license revoked. Id. at 612. Sears

claimed the investigation was shoddy and the insurance company reported his conduct and sought

suspension of his license based on “a personal vendetta designed to punish Sears for making earlier

reports of an alleged kickback scheme.” Id.



                                               - 25 -
Concurring and Dissenting Opinion                                                     04-17-00160-CV


        The jury found in favor of Sears on his IIED claim, and the court of appeals affirmed this

finding, relying on the insurance company’s post-termination conduct. Id. However, the supreme

court held that although motive or intent is relevant to an IIED claim, it is insufficient to support

liability. Id. Rather, the conduct itself must be extreme and outrageous. Id. The supreme court

held the insurance company’s behavior did not rise to this level, reversing the court of appeals’

judgment and rendering judgment that Sears take nothing. Id.

        Both Mendez and Sears are instructive. Much like the plaintiffs in those cases, Dr. Elkins

relies on statements made by James and Pyles alleging civil and criminal misconduct following an

allegedly deficient investigation. Even considering the statements in the light most favorable to

Dr. Elkins — that the statements are false, were made with knowledge of their falsity, and based

on a faulty investigation, I do not believe they constitute clear and specific evidence of extreme

and outrageous conduct for purposes of her IIED claim. See Spencer, 2017 WL 993093, at *4

(holding trial court and appellate court are required to consider pleadings and evidence in light

most favorable to plaintiff). The statements Dr. Elkins relies on assert theft and other acts of

malfeasance with regard to her employment with the practice. These types of statements — as can

be seen from Mendez and Sears — are not “so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Hoffman-LaRoche Inc., 144 S.W.3d at 445. I would

therefore conclude the evidence relied upon by Dr. Elkins does not constitute clear and specific

evidence of extreme and outrageous conduct. Accordingly, I would hold the trial court erred in

denying the motions to dismiss Dr. Elkins’s claim for IIED as to both James and Pyles.




                                                - 26 -
Concurring and Dissenting Opinion                                                                         04-17-00160-CV


         d. Conspiracy

         In her petition, Dr. Elkins alleged James and Pyles intentionally, “in combination with each

other, agreed to make false statements to Travelers and to SAPD … by unlawful means … to

defraud Travelers, and to cause [her] intentional harm[.]” Pyles contens the trial court erred in

granting her motion to dismiss with regard to the conspiracy allegation because: (1) conspiracy is

a derivative claim and because Dr. Elkins failed to prove a prima facie case with regard to any of

her underlying tort claims — defamation, business disparagement, and IIED — she likewise failed

to establish a prima facie case for her conspiracy claim; (2) Dr. Elkins waived her conspiracy claim

by failing to address it in her response to the motions to dismiss; and (3) Dr. Elkins did not establish

a prima facie case by clear and specific evidence that James and Pyles had a meeting of the minds

to make false statements. 8

         “An action for civil conspiracy has five elements: (1) a combination of two or more

persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a

meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are

taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.”

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). To

recover for civil conspiracy, a plaintiff must prove “specific intent to agree to accomplish

something unlawful or to accomplish something lawful by unlawful means.” Id.

         This court has recognized, that a defendant’s liability for civil conspiracy is dependent on

his participation in some underlying tort for which a plaintiff seeks to hold at least one of several

defendants liable. Mission Wrecker Serv., S.A., Inc. v. Assured Towing, Inc., No. 04-17-00006-

CV, 2017 WL 3270358, at *6 (Tex. App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.)


8
 Given that Dr. Elkins failed to establish a prima facie case for any of the underlying torts asserted against James and
Pyles, it is irrelevant that James failed to specifically challenge the civil conspiracy allegation in his motion to dismiss.

                                                           - 27 -
Concurring and Dissenting Opinion                                                       04-17-00160-CV


(citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). Accordingly, we held that under

the TCPA, if the plaintiff fails to establish a prima facie case on at least one of the alleged

underlying torts for which she sought to hold the defendants liable, she has similarly failed to

establish a prima facie case on her civil conspiracy claim. Id. Because I believe Dr. Elkins failed

to establish a prima facie case for any of the underlying torts asserted against James and Pyles, I

would hold she has also failed to establish a prima facie case on her conspiracy claim. See id.

        With regard to the contention that Dr. Elkins waived her civil conspiracy claim by failing

to discuss its elements — or even mention it — in her response to the motions to dismiss, I

disagree. In support of this contention, James and Pyles rely on Bilbrey. In that case, the court

noted that the plaintiff “did not specifically discuss the elements of conspiracy or what evidence

supported his conspiracy claim” in his response to the defendant’s motion to dismiss. Bilbrey,

2015 WL 1120921, at *14. However, the court did not hold the plaintiff had waived his conspiracy

claim. Id. Rather, the court held that because the plaintiff had failed to make a prima facie case

for defamation — the underlying tort relied on for his conspiracy claim — he had likewise failed

to make a prima facie case for his conspiracy claim. Id. I have found no authority, nor have James

or Pyles cited to any authority for the proposition that a plaintiff’s failure to address a claim in the

response to a motion to dismiss waives that claim. Moreover, such a holding would be contrary

to the TCPA. The issue is whether the plaintiff established a prima facie case by clear and specific

evidence with regard to each element of her claims. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(c); Lipsky, 460 S.W.3d at 587; Coleman, 512 S.W.3d at 899. A plaintiff could possibly

meet her burden based on her petition and any evidence attached thereto. Thus, I would decline

to hold that failing to address a claim in a response to a motion to dismiss under the TCPA

automatically results in waiver of that claim.



                                                 - 28 -
Concurring and Dissenting Opinion                                                      04-17-00160-CV


        Pyles also contends Dr. Elkins’s conspiracy claim was subject to dismissal because she

failed to provide clear and specific evidence there was a meeting of the minds between James and

Pyles to make false statements about Dr. Elkins. As set out above, a conspiracy requires a specific

intent to agree to do something unlawful or to do something lawful in an unlawful way. Parker,

514 S.W.3d at 222. This requires a meeting of the minds on a course of action. Id. Thus, here,

Dr. Elkins had to provide clear and specific evidence that Dr. James, Jean, Pyles, or some

combination of the three, had agreed to make false statements about Dr. Elkins and report them to

SAPD and Travelers.

        Viewing Dr. Elkins’s contentions in the most favorable light, there is no evidence of an

agreement by Dr. James, Jean, Pyles, or any combination thereof, to make false statements about

Dr. Elkins. Assuming all of the statements made by James and Pyles about Dr. Elkins were false,

there is no evidence of any specific intent to agree to make or report those false statements in an

effort to injure Dr. Elkins. In her brief, Dr. Elkins relies on the lack of a complete investigation

— failure to review of all the payroll records from 1991 through 2014 — to establish an agreement

to assert false statements. At best this evidence shows an agreement to conduct a limited

investigation. A limited or deficient investigation is not clear and specific evidence — direct or

circumstantial — of an agreement to make and publish false statements. Accordingly, I believe

Dr. Elkins failed to provide clear and specific evidence sufficient to establish a prima facie case

that there was a meeting of the minds by Dr. James, Jean, Pyles, or any combination of the three,

to make and report false statements about her. Thus, for this additional reason, the trial court erred

in denying the Pyles’s motion to dismiss with regard to the conspiracy claim.




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Concurring and Dissenting Opinion                                                                      04-17-00160-CV


                            Motion for Discovery and Motion for Continuance

         As to Dr. Elkins’s contention that the trial court erred in denying her motion for discovery

and motion for continuance, she argues that if for any reason this court holds the trial court erred

in denying the motions to dismiss, we should further hold the trial court erred in denying her

motions for discovery and continuance. She contends the denial of these motions deprived her of

access to evidence in possession of James, Pyles, and Travelers that was relevant to the motions

to dismiss. See id. § 27.006(b) (stating that on motion by party or on court’s own motion and on

showing of good cause, court may allow specified and limited discovery relevant to motion to

dismiss). Because I believe the trial court erred in refusing to grant the motions to dismiss in their

entirety, I address Dr. Elkins’s contentions with regard to her motions for discovery and for

continuance. I would hold Dr. Elkins’s complaints regarding the denial of these motions cannot

form the basis of an interlocutory appeal. 9

         “A party may not appeal an interlocutory order unless authorized by statute.” Bally Total

Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). In other words, if there is no statute

authorizing an appeal of an interlocutory order, “[a]n appellate court lacks jurisdiction to review”

the interlocutory order. Helix Energy Sols. Group, Inc. v. Howard, 452 S.W.3d 40, 42 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (citing Qwest Commc’ns Corp. v. AT & T Corp., 24

S.W.3d 334, 336 (Tex. 2000)). An interlocutory appeal of a trial court’s denial of a motion to

dismiss filed under the TCPA is statutorily authorized. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(12); see also id. § 27.008. An appellate court’s jurisdiction over an interlocutory appeal




9
  In my analysis, I assume without deciding that Dr. Elkins was not required to file a separate notice of appeal. See
TEX. R. APP. P. 25.1(c) (stating that party who seeks to alter trial court’s judgment or other appealable order must file
notice of appeal); see also Bell Cnty. v. Kozeny, No. 10-14-00021-CV, 2014 WL 4792656, at *3 n.3 (Tex. App.—
Waco Sept. 24, 2014, no pet.) (mem. op.) (holding that under rule 25.1(c) “and longstanding case law,” appellee need
not file notice of appeal to assert cross-point to request relief in event of reversal).

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Concurring and Dissenting Opinion                                                      04-17-00160-CV


is limited to the scope permitted in the statute. Astoria Indus., of Iowa, Inc. v. SNF, Inc., 223

S.W.3d 616, 626 (Tex. App.—Fort Worth 2007, pet. denied); see also CMH Homes v. Perez, 340

S.W.3d 444, 447 (Tex. 2011) (holding appellate courts strictly apply statutes granting interlocutory

appeals because they are narrow exceptions to general rule against appeals from interlocutory

orders). Issues outside that scope cannot be considered in the interlocutory appeal, even if

presented in the same motion or other relief is granted in the same order. See Astoria Indus., 223

S.W.3d at 626.

        The authority to seek an interlocutory appeal under the TCPA is limited to appeals from an

order denying a motion to dismiss. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (emphasis

added). Neither section 51.014 of the Civil Practice & Remedies Code nor any other statute

permits interlocutory appeals from an order denying discovery under section 27.006(b) of the

TCPA or an associated motion for continuance.            Accordingly, I conclude this court lacks

jurisdiction over Dr. Elkins’s issues regarding the trial court’s rulings on her motions for discovery

and continuance. See Howard, 452 S.W.3d 40, 42; Astoria Indus., 223 S.W.3d at 626. When an

appeal is from two interlocutory rulings, only one of which is made appealable by statute, the

proper course of action is to dismiss the unappealable portion and rule on the portion that is subject

to appeal. Sanders v. City of Grapevine, 218 S.W.3d 772, 776–77 (Tex. App.—Fort Worth 2007,

pet. denied); Elm Creek Villas Homeowners Ass’n v. Beldon Roofing & Remodeling Co., 940

S.W.2d 150, 154 (Tex. App.—San Antonio 1996, no writ). I would dismiss for want of jurisdiction

Dr. Elkins’s issues relating to the trial court’s denial of her motions for discovery and continuance.

                                           CONCLUSION

        Based on my preceding analysis, I would hold: (1) the claims challenged by James and

Pyles fall within the TCPA, see TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), 27.001(7)(B),



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Concurring and Dissenting Opinion                                                     04-17-00160-CV


(C); see also Watson v. Hardman, 497 S.W.3d 601, 607; (2) Dr. Elkins failed to establish by clear

and specific evidence a prima facie case for all of the essential element of her claims, see TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(c); Lipsky, 460 S.W.3d at 587; Coleman, 512 S.W.3d at

899; and (3) Dr. Elkins’s issues relating to the trial court’s rulings on her motions for discovery

and continuance must be dismissed for want of jurisdiction. I would reverse the trial court’s order

denying the motions to dismiss filed by James and Pyles in its entirety, render judgment dismissing

Dr. Elkin’s claims for defamation, business disparagement, IIED, and conspiracy against James

and Pyles, and remand this cause to the trial court for a determination of attorneys’ fees and costs.

See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (stating that award of attorney’s fees and costs

is mandatory when action is dismissed under TCPA). Therefore, I respectfully concur in the

portions of the majority opinion and judgment reversing the trial court’s order and rendering

judgment in favor of James and Pyles, but dissent to the portions of the majority opinion and

judgment affirming the trial court’s order.

                                                   Marialyn Barnard, Justice




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