HDG, Ltd D/B/A Hunton Distribution v. Kelly Blaschke ( 2020 )

Affirmed and Memorandum Opinion filed April 9, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-01017-CV
HDG, LTD. D/B/A HUNTON DISTRIBUTION, Appellant
V.
KELLY BLASCHKE, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2018-38838
MEMORANDUM OPINION
Appellee Kelly Blaschke sued appellant HDG, Ltd. d/b/a Hunton Distribution,
asserting claims arising from statements a Hunton employee made about her
departure from the company. Hunton filed a motion to dismiss Blaschke’s claims
under the Texas Citizens’ Participation Act (“TCPA”). The trial court denied the
motion to dismiss and Hunton filed this interlocutory appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(12). For the reasons below, we affirm the trial court’s
denial of Hunton’s motion to dismiss.
BACKGROUND
In June 2018, Blaschke sued Hunton and asserted claims for breach of
contract, defamation, and intentional infliction of emotional distress (“IIED”).
Blaschke had been employed by Hunton and, in her original petition, stated that she
and Hunton had entered into a severance agreement to resolve discrimination claims
she brought against the company. The severance agreement was dated May 4, 2018
and prohibited Blaschke and Hunton from making “disparaging comments” about
each other. Blaschke alleged that, contrary to the parties’ severance agreement,
Hunton employee Robert Tyler made the following statements about her at a May
14, 2018 meeting with other Hunton employees:
[Blaschke] had an affair with a customer. His wife then contacted the
company and made a big stink about it. [Blaschke] then lied to me
about it and we had to let her go.
Blaschke alleged that these statements were repeated to other individuals both inside
and outside of Hunton.
Hunton filed an answer to Blaschke’s original petition and a motion to dismiss
under the TCPA. Blaschke responded to Hunton’s motion to dismiss, asserting her
claims did not implicate the TCPA and requesting the trial court’s permission to
depose Tyler. The trial court held a hearing on Hunton’s motion to dismiss on
October 15, 2018.1
Two weeks after the hearing, Blaschke filed an amended petition omitting her
IIED claim. Blaschke also filed “Evidence in Support of Denial of Defendant’s
Motion to Dismiss,” which included affidavits from the following individuals:
• Jessica Vail, a former Hunton employee. Vail said she attended the
May 14 meeting with Tyler and other Hunton employees. According
1
A transcript of the October 15, 2018 hearing was not included with the appellate record.
2
to Vail, Tyler told the meeting’s attendants that Blaschke was “let go”
from Hunton because she had “a relationship with a customer” and “lied
about it.”
• Robert Tyler, Hunton’s vice president of sales. Tyler stated that he told
his sales team at the May 14 meeting that Blaschke had become
“romantically involved” with a customer and was untruthful about it.
Tyler denied stating that Blaschke was “fired” or “let go.”
• Sergio Ramirez, the owner of S&R Services. Ramirez stated that he
was told Blaschke “had an affair with a customer and lied about it and
was fired.” Ramirez stated that, because of this information, he decided
against retaining Blaschke or her current employer, Goodman Air
Conditioning and Heating, for his company’s needs.
• Kelly Blaschke. Blaschke stated that Hunton employees informed her
about the “disparaging comments” Tyler made at the May 14 meeting.
Blaschke said the comments damaged her reputation and required her
to seek medical care. Blaschke also asserted that the comments caused
her to lose a commission and bonus from her employer, Goodman Air
Conditioning and Heating.
Blaschke also included with her evidentiary filing a transcript of Tyler’s deposition,
where he testified that he believed Blaschke was not forthcoming about her
relationship with a customer. Tyler also stated that he told the sales team at the May
14 meeting that Blaschke “decided to leave [Hunton] of her own volition.” Tyler
denied stating that Blaschke was “fired” or “let go.”
Hunton objected and moved to strike the evidence included with Blaschke’s
filing. Hunton also filed an amended answer asserting the affirmative defense of
qualified privilege.
On November 2, 2018, the trial court held a second hearing on Hunton’s
motion to dismiss. The trial court denied Hunton’s motion in an order signed
November 5, 2018. Hunton timely appealed.
3
ANALYSIS
Appealing the trial court’s denial of its TCPA motion to dismiss, Hunton
asserts five issues:
1. The claims in Blaschke’s original petition implicate Hunton’s exercise
of its right of free speech and right of association.
2. The trial court erred by overruling Hunton’s objections to Blaschke’s
evidence.
3. Blaschke failed to establish by clear and specific evidence a prima facie
case for each essential element of the claims in her original petition.
4. Hunton established by a preponderance of the evidence each element
of a valid defense.
5. The trial court erred by denying Hunton’s motion to dismiss with
respect to Blaschke’s nonsuited IIED claim.
We address these issues below.
I. Applicable Law and Standard of Review
The express purpose of the TCPA is twofold: (1) “to encourage and safeguard
the [enumerated] constitutional rights,” and (2) to “protect the rights of a person to
file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code
Ann. § 27.002; Toth v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 149
(Tex. App.—Houston [14th Dist.] 2018, no pet.). The TCPA is an anti-SLAPP law;
“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.” Toth,
557 S.W.3d at 149. To effect its stated purpose, the TCPA provides a mechanism
for trial courts to identify and summarily dispose of those suits designed only to chill
First Amendment rights. In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig.
proceeding). But the TCPA is not intended to bring about the dismissal of
meritorious lawsuits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (balancing
“the constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law”
4
against “the rights of a person to file meritorious lawsuits for demonstrable injury”);
see also ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017)
(per curiam); Hearst Newspapers, LLC v. Status Lounge Inc., 541 S.W.3d 881, 887-
88 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
We review de novo the trial court’s denial of a TCPA motion to dismiss.
O’Hern v. Mughrabi, 579 S.W.3d 594, 602 (Tex. App.—Houston [14th Dist.] 2019,
no pet.). Under this standard, we “make an independent determination and apply the
same standard used by the trial court in the first instance.” Cox Media Grp., LLC v.
Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
We construe the TCPA liberally to effectuate its purpose and intent. O’Hern, 579
S.W.3d at 602. But interpreting the TCPA “has presented challenges to the courts
of appeals because of the breadth of its plain language.” Bandin v. Free & Sovereign
State of Veracruz de Ignacio de la Llave, 590 S.W.3d 647, 650 (Tex. App.—Houston
[14th Dist.] 2019, pet. filed).
The TCPA establishes a three-step process.2 First, the moving party must
show by a preponderance of the evidence that the plaintiff’s claim “is based on,
relates to, or is in response to the [moving party’s] exercise of: (1) the right of free
speech; (2) the right to petition; or (3) the right of association.” Act of May 21,
2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 962 (amended 2019)
(current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005). Next, the burden
2
The Texas Legislature amended the TCPA in its most recent legislative session and the
amendments are effective September 1, 2019. Because this suit was filed before the effective date
of the amendments, it is governed by the statute as it existed before the amendments, and all of our
citations are to the TCPA as it existed prior to September 1, 2019. See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, §§ 1-12, 2019 Tex. Gen. Laws 684, 684-87 (current versions at Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.001-.011); see, e.g., Sullo v. Kubosh, __ S.W.3d __, 2019 WL 6120878,
at *10 n.3 (Tex. App.—Houston [1st Dist.] Nov. 19, 2019, no pet. h.).
5
shifts to the plaintiff to “establish[] by clear and specific evidence a prima facie case
for each essential element of the claim in question.” Id. But even if the plaintiff
satisfies the second step, the court shall dismiss the plaintiff’s claim if the moving
party “establishes by a preponderance of the evidence each essential element of a
valid defense to the nonmovant’s claim.” Id.
We apply this framework to a relatively limited universe of evidence. Toth,
557 S.W.3d at 150. To determine whether a claim should be dismissed under the
TCPA, the court “shall consider the pleadings and supporting and opposing
affidavits stating the facts on which the liability or defense is based.” Act of May
21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2019)
(current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.006). For good cause,
the trial court also may permit specific and limited discovery. Id.; see also Toth, 557
S.W.3d at 150.
II. Right of Association
Asserting that Blaschke’s original petition implicates the TCPA, Hunton
contends her claims are “based on, relate[] to, or [are] in response to” Hunton’s
exercise of its right of free speech and right of association.
Our analysis of this issue focuses on the allegations and claims in Blaschke’s
original petition. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890,
894 (Tex. 2018) (“‘When it is clear from the plaintiff’s pleadings that the action is
covered by the [TCPA], the defendant need show no more.’”) (quoting Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). Blaschke alleged that Tyler made the
following statements about her at the May 14 meeting with approximately 20 Hunton
sales employees:
[Blaschke] had an affair with a customer. His wife then contacted the
company and made a big stink about it. [Blaschke] then lied to me
6
about it and we had to let her go.
These statements form the basis of Blaschke’s claims.3
We conclude these pleadings implicate the TCPA’s right of association. The
TCPA defines an “[e]xercise of the right of association” as “a communication
between individuals who join together to collectively express, promote, pursue, or
defend common interests.” Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex.
Gen. Laws 961, 961 (current version at Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(2)). A “communication” includes “the making or submitting of a statement
or document in any form or medium, including oral, visual, written, audiovisual, or
electronic.” Id.; see also Adams, 547 S.W.3d at 894 (the TCPA’s definition of
“communication” includes “[a]lmost every imaginable form of communication, in
any medium”).
Blaschke asserts the employee meeting at which Tyler’s alleged statements
were made does not constitute a group of individuals “join[ed] together to
collectively express, promote, pursue, or defend common interests.” But the plain
language of this provision casts a wide net. See ExxonMobil Pipeline Co., 512
S.W.3d at 900 (counseling against “improperly narrow[ing] the scope of the TCPA
by ignoring the Act’s plain language”). Moreover, recent case law from this court
prescribes a broader application of the “right of association” than that advocated by
Blaschke. See, e.g., O’Hern, 579 S.W.3d at 603-04 (TCPA’s right of association
applied to claims arising from condominium association’s board of directors’
3
In her petition, Blaschke also alleged that certain unnamed Hunton employees made
additional “disparaging statements” about her to Hunton’s customers and told the customers
Blaschke “filed sexual harassment claims” against Hunton. These allegations were not reasserted
in (1) Blaschke’s response to Hunton’s motion to dismiss, (2) in the affidavits Blaschke filed as
evidence to support the denial of Hunton’s motion to dismiss, or (3) in Blaschke’s appellee’s brief.
Accordingly, we do not include them in our analysis of the TCPA’s applicability.
7
decision to levy a special assessment); Fawcett v. Grosu, 498 S.W.3d 650, 657 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied) (the parties were members of a
Masonic lodge and charged appellee with violating certain Masonic rules; appellee’s
claims arising from these charges implicated the TCPA’s right of association).
We have previously analyzed the right of association in the employment
context in Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV,
2018 WL 3118601 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied)
(mem. op.). There, appellee 2 Savages sued the owners of Hi-Tech Concrete
Pumping after Hi-Tech hired Chad MacDonald, one of 2 Savages’ former
employees. Id. at *1-2. 2 Savages asserted that MacDonald’s hiring tortiously
interfered with the restrictive covenants in MacDonald’s employment agreement
with 2 Savages. Id. Concluding that this claim implicated the TCPA’s right of
association, this court stated:
[W]ith respect to MacDonald’s hiring, this communication [to
effectuate the hiring] was made by individuals who “joine[ed] together
to collectively express, promote, pursue, or defend common interests,”
the common interests being the business of Hi-Tech, or as 2 Savages
alleged, Hi-Tech “conspired with Defendant Chad MacDonald to
violate and interfere with the Non-Compete Contract between himself
and 2 Savages.”
(emphasis added).
Here, the statements at issue were made at a meeting between Tyler and other
Hunton sales employees. Like the communications in Abatecola, Tyler’s statements
were communicated between individuals who joined together to express, promote,
or pursue common interests, i.e., Hunton’s business. Therefore, given the plain
language of the applicable statute and recent case law, we conclude the claims in
Blaschke’s original petition implicate Hunton’s right of association.
Pointing out that the parties’ severance agreement prohibits disparagement,
8
Blaschke contends that Hunton “contractually waived” its right to rely on the TCPA.
But “[w]hether the TCPA allows a party to avoid contractual obligations is not the
proper inquiry.” Reeves v. Harbor Am. Cent., Inc., 552 S.W.3d 389, 395 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); see also Morgan v. Clements Fluids S.
Tex., Ltd., 589 S.W.3d 177, 184-85 (Tex. App.—Tyler 2018, no pet.). Instead, the
movant need only show that it exercised a statutory right under the TCPA. See Act
of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended
2019); Reeves, 552 S.W.3d at 395. Hunton made that showing. We therefore reject
Blaschke’s contention that the severance agreement forecloses Hunton’s reliance on
the TCPA.
Accordingly, we conclude Hunton made the initial showing required under
the TCPA. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws
961, 963 (amended 2019). Therefore, the burden shifted to Blaschke. Id.
III. Prima Facie Case
Hunton asserts Blaschke did not satisfy her burden under the TCPA and did
not establish by clear and specific evidence a prima facie case for each essential
element of her claims. Pointing to the affidavits filed in the trial court, Blaschke
contends that she satisfied this burden with respect to her defamation and breach of
contract claims.
Hunton also raises numerous issues challenging the trial court’s evidentiary
rulings with respect to the affidavits filed by Blaschke. We review the trial court’s
decision to admit or exclude evidence for an abuse of discretion. Moore v. Mem’l
Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 873 (Tex. App.—Houston [14th Dist.]
2004, no pet.); see also Day v. Fed’n of State Med. Bds. of the U.S., Inc., 579 S.W.3d
810, 817-18 (Tex. App.—San Antonio 2019, pet. denied) (applying the abuse of
discretion evidentiary standard in TCPA context). The burden is on Hunton to show
9
that the error, if any, in the trial court’s rulings resulted in an improper judgment.
City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To that end, we
review only those objections necessary to determine whether Blaschke satisfied her
burden at this stage of the proceeding. We begin with Hunton’s general evidentiary
objections and turn to Hunton’s specific objections in our analysis of Blaschke’s
claims.
A. General Evidentiary Objections
Hunton argues the trial court erred by holding two hearings on Hunton’s
motion to dismiss: the first on October 18, 2018, and the second on November 2,
2018. Arguing that the TCPA contemplates only a single hearing on the motion to
dismiss, Hunton contends that it was error to permit Blaschke to file additional
evidence after the first hearing.
We reject Hunton’s challenge. A transcript of the October 15, 2018 hearing
was not included with the appellate record. Therefore, we cannot determine what
transpired at the first hearing or whether it would preclude the trial court from
considering Blaschke’s evidence or addressing Hunton’s motion to dismiss at the
November 2 hearing. See Tex. R. App. P. 34.6(c)(4); see also Coe v. Sienna Fin.
Servs., LLC, No. 14-18-00338-CV, 2019 WL 3783561, at *4 (Tex. App.—Houston
[14th Dist.] Aug. 13, 2019, no pet.) (mem. op.) (“[I]f an appellant provides a partial
reporter’s record without including the required statement of points or issues, we
must presume the omitted portions of the reporter’s record support the trial court’s
findings”). Moreover, at the November 2 hearing, the trial court stated that it did
not intend the earlier hearing to finally dispose of Hunton’s motion to dismiss,
particularly since additional discovery had been ordered at that time. See Act of
May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended
2019) (“On a motion by a party or on the court’s own motion and on a showing of
10
good cause, the court may allow specified and limited discovery relevant to the
motion.”).
Hunton also broadly asserts that Blaschke cannot satisfy her evidentiary
burden because Tyler’s affidavit rebuts or contradicts her evidence. But the movant
for dismissal under the TCPA has no burden to disprove the existence of a prima
facie case. Rodriguez v. Gonzales, 566 S.W.3d 844, 849 (Tex. App.—Houston [14th
Dist.] 2018, pet. denied). In fact, the movant cannot do so because “prima facie
proof is not subject to rebuttal, cross-examination, impeachment, or disproof.” In re
Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding).
Accordingly, Tyler’s affidavit does not nullify Blaschke’s evidence.
We overrule Hunton’s general evidentiary objections.
B. Applicable Law
Because the TCPA applies to Blaschke’s claims, she was required to bring
forth “clear and specific evidence” establishing a prima facie case for each essential
element of her claims to avoid mandatory dismissal. See Act of May 21, 2011, 82d
Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2019); see also
ExxonMobil Pipeline Co., 512 S.W.3d at 899. The TCPA does not define “clear and
specific,” so we apply those terms’ ordinary meanings: “clear” means
“unambiguous,” “sure,” or “free from doubt” while “specific” means “explicit” or
“relating to a particular named thing.” S&S Emergency Training Sols., Inc. v. Elliott,
564 S.W.3d 843, 847 (Tex. 2018); O’Hern, 579 S.W.3d at 604. As the Texas
Supreme Court has explained, this standard requires the plaintiff to “provide enough
detail to show the factual basis for its claim.” Bedford v. Spassoff, 520 S.W.3d 901,
904 (Tex. 2017) (per curiam) (internal quotation omitted). “This requires more than
mere notice pleading.” Toth, 557 S.W.3d at 149 (internal quotation omitted).
11
The Texas Supreme Court has rejected the idea that the TCPA establishes a
heightened evidentiary standard. In re Lipsky, 460 S.W.3d at 591. Rather, the prima
facie standard is defined as “the minimum quantum of evidence necessary to support
a rational inference that the allegation of fact is true.” Id. at 590 (internal quotation
omitted). A prima facie case may be shown through circumstantial evidence, but
“conclusory statements are not probative evidence and accordingly will not suffice
to establish a prima facie case.” O’Hern, 579 S.W.3d at 604.
C. Defamation
Defamation is generally defined as “the invasion of a person’s interest in her
reputation and good name.” Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).
The elements for a prima facie case of defamation are: (1) the defendant published
a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault
regarding the truth of the statement (negligence if the plaintiff is a private
individual); and (4) damages, in some cases. Bedford, 520 S.W.3d at 904;
Rodriguez, 566 S.W.3d at 851. A plaintiff’s evidence is sufficient to sustain a
defamation claim if the evidence “establishes the facts of when, where, and what
was said, the defamatory nature of the statements, and how they damaged the
plaintiff.” In re Lipsky, 460 S.W.3d at 591.
1. Publication of a False Statement
With respect to the first element, a publication is false if it is not substantially
true. Rodriguez, 566 S.W.3d at 851. “A publication is not substantially true if, taken
as a whole, it is more damaging to the plaintiff’s reputation than a truthful
publication would have been.” Id. A statement is “published” when it is
communicated to a third person who is capable of understanding its defamatory
meaning in such a way that the person did understand its defamatory meaning.
Thomas-Smith v. Mackin, 238 S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.]
12
2007, no pet.).
According to the affidavit of Jessica Vail, a former Hunton employee, she
attended a meeting with Tyler and other Hunton employees on May 14, 2018. Vail’s
affidavit states that, during the meeting, Tyler said that Blaschke was “let go” and
“terminated” because she had a relationship with a customer and “lied about it.”4
In her affidavit, Blaschke asserts that these statements were false. Blaschke
said she met with Tyler approximately four months before the May 14 meeting and
was forthcoming about her relationship with a customer. Blaschke also stated that
her departure from Hunton did not stem from her relationship with a customer —
instead, Blaschke said she resigned from Hunton pursuant to the parties’ severance
agreement. This evidence satisfies Blaschke’s evidentiary burden with respect to
the first element of her defamation claim.
2. Defamatory Regarding Blaschke
A statement is defamatory if it tends to injure a person’s reputation or impeach
a person’s honesty, integrity, or virtue. Backes v. Misko, 486 S.W.3d 7, 24 (Tex.
App.—Dallas 2015, pet. denied); Cecil v. Frost, 14 S.W.3d 414, 417 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). Whether a statement is defamatory is a question
of law for the court. Cecil, 14 S.W.3d at 417. For this determination, we construe
the statement as whole in light of surrounding circumstances based on how a
reasonable person would perceive the entire statement. In re Lipsky, 460 S.W.3d at
4
These allegations regarding Tyler’s statements at the May 14 meeting also were asserted
in Blaschke’s affidavit. Blaschke said she learned of the statements “from speaking with Hunton
employees.” Citing the Texas Rules of Evidence, Hunton asserts Blaschke’s statements on this
point constitute hearsay. Because these allegations also were attested to in Vail’s affidavit (and
un-objected to by Hunton), we do not address Hunton’s hearsay objection to Blaschke’s affidavit.
See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (error in the admission
of evidence generally is deemed harmless if the objecting party subsequently permits the same or
similar evidence to be introduced without objection).
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594; Cecil, 14 S.W.3d at 417.
The statements at issue asserted that Blaschke was fired because she lied about
having an affair with a customer. A reasonable person could conclude these
statements would tend to injure a person’s reputation or impeach a person’s honesty,
integrity, or virtue. Therefore, Blaschke’s evidence satisfies her burden with respect
to this element of her defamation claim.
3. Requisite Degree of Fault
Because Blaschke is a private individual, she must show the defamatory
statements were negligently published. See Bedford, 520 S.W.3d at 904; Rodriguez,
566 S.W.3d at 851. “‘Negligence’ is established upon a showing the publisher knew
or should have known that the defamatory statement was false.” Ford v. Bland, No.
14-15-00828-CV, 2016 WL 7323309, at *3 (Tex. App.—Houston [14th Dist.] Dec.
15, 2016, no pet.) (mem. op.).
Blaschke’s affidavit makes this showing. Blaschke asserts that, several
months before the May 14 meeting, she was questioned by Tyler regarding her
relationship with a Hunton customer. Blaschke attested that she was forthcoming
about the relationship and did not lie about it to Tyler.
Referencing the parties’ severance agreement, Blaschke also states in her
affidavit that she “agreed to resign” from Hunton “as part of an amicable resolution”
of her discrimination claims. The severance agreement was attached to Blaschke’s
affidavit; the agreement specifically prohibits Tyler (and certain other Hunton
employees) from “mak[ing] disparaging comments concerning” Blaschke. If Tyler
was bound by the terms of the severance agreement, then presumably he also would
have known that Blaschke’s departure from Hunton was effected pursuant to the
agreement (rather than as a result of an alleged lie). Therefore, this evidence makes
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a prima facie case that Tyler knew or should have known that the alleged defamatory
statements were false.
4. Damages
Defamation claims are delineated into defamation per se and per quod.
Hancock, 400 S.W.3d at 63-64. Defamation per se refers to statements that are so
obviously harmful that general damages are presumed to flow from the nature of the
defamation itself. In re Lipsky, 460 S.W.3d at 593; Exxon Mobil Corp. v. Hines, 252
S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Special
damages are never presumed because they represent specific economic losses that
must be proven. In re Lipsky, 460 S.W.3d at 593. For defamation per quod, a
plaintiff must carry the burden of proof on both the existence and amount of
damages. Hancock, 400 S.W.3d at 63; Exxon Mobil Corp., 252 S.W.3d at 501.
Before a plaintiff can recover general damages in an action for defamation per quod,
the plaintiff first must prove special damages. See Dallas Morning News, Inc. v.
Tatum, 554 S.W.3d 614, 626 (Tex. 2018).
Here, neither party addresses whether Blaschke’s claims are defamation per
se or per quod. The parties instead focus on whether Blaschke’s evidence establishes
a prima facie case with respect to damages. Presuming (for these limited purposes)
that the alleged statements constitute defamation per quod, we conclude Blaschke
met her evidentiary burden with respect to general and special damages.
To establish a prima facie case, “[d]irect 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.” S&S Emergency Training Sols.,
Inc., 564 S.W.3d at 847. General damages compensate for non-economic losses,
such as mental anguish or loss of reputation; special damages are economic damages
such as a for lost income. Hancock, 400 S.W.3d at 65. Evidence that the plaintiff
15
has lost a job or business opportunity may show loss of reputation if it is connected
to the defamatory statements at issue. Anderson v. Durant, 550 S.W.3d 605, 621
(Tex. 2018) (testimony from a prospective employer that he would not hire the
plaintiff due to certain allegations regarding a kickback scheme constituted “more
than a scintilla of evidence” that the allegations damaged the plaintiff’s reputation).
Once a loss has been established, the jury has discretion to estimate the amount that
will reasonably compensate the plaintiff. Id.
Here, Ramirez’s and Blaschke’s affidavits satisfy Blaschke’s evidentiary
burden with respect to general and special damages. In his affidavit, Ramirez stated
that he is the owner of S&R Services, which provides residential heating and air
conditioning services. Ramirez asserted that he “was told by contractors . . . that
Kelly Blaschke no longer worked at Hunton because she had an affair with a
customer and lied about it and was fired.” Continuing on, Ramirez stated:
Also, in 2018, I received a call from Kelly Blaschke during which she
wanted S&R Services to provide business to Ms. Blaschke and her
employer, Goodman. Because of the information that Ms. Blaschke
had an affair and lied about it and was fired, I specifically have chosen
not to use Ms. Blaschke or Goodman for my company’s needs and have
chosen not to send her or Goodman any business. I would have sent at
least $50,000 worth of business this year to her and to Goodman if I
had not been told this information about her departure, including the
affair and her lying about the affair and her being terminated.
In her affidavit, Blaschke stated that she had discussions “with the President of S&R
Services in order to secure their business” but “S&R Services has declined to provide
[her] with such business.” Citing her compensation agreement, Blaschke stated that
securing $50,000 worth of business would have entitled her to a percentage
commission as well as a bonus.
This evidence permits the rational inference that some general and special
16
damages naturally flowed from Tyler’s alleged statements, namely, lost income and
injury to Blaschke’s reputation. See S&S Emergency Training Sols., Inc., 564
S.W.3d at 847. This evidence therefore satisfies Blaschke’s evidentiary burden with
respect to the damages element of her defamation claim. See Anderson, 550 S.W.3d
at 621.
Arguing that Ramirez’s affidavit lacks an appropriate foundation, Hunton
asserts that Ramirez does not state “why he believes that such contractors at the
supply house do business with Hunton, when the contractors allegedly learned of the
information, [or] that the source of the information came from Hunton.” We reject
these evidentiary challenges. The TCPA does not impose a heightened evidentiary
standard but instead requires only that the nonmoving party “provide enough detail
to show the factual basis for its claim.” Bedford, 520 S.W.3d at 904. Ramirez’s
affidavit satisfies this standard: Ramirez states where and from whom he heard the
statements regarding Blaschke’s departure from Hunton and how these statements
impacted his decision against retaining Blaschke and Goodman Air Conditioning
and Heating.
Likewise, Ramirez was not required to show that the contractors’ source of
the information came from Hunton — instead, the applicable standard requires only
that the evidence create a “rational inference” that damages flowed from the
allegedly defamatory statements. S&S Emergency Training Sols., Inc., 564 S.W.3d
at 847; see also O’Hern, 579 S.W.3d at 604 (a prima facie case may be shown
through circumstantial evidence). Ramirez states that he was told Blaschke lied
about having an affair with a customer and was fired — the same statements that,
according to Vail’s affidavit, Tyler made at the May 14 employee meeting. The
statements’ similarities support the rational inference that they came from the same
source.
17
Hunton also asserts that Ramirez’s affidavit “appears to be disingenuous” and
references an assumed name certificate purportedly showing that Ramirez formed
S&R Services on the same day the affidavit was executed. But neither this argument
nor the assumed name certificate was brought to the trial court’s attention.
Therefore, Hunton did not preserve this issue for appellate review. See Tex. R. App.
P. 33.1.
We conclude Blaschke satisfied her burden under the second step of the TCPA
framework and brought forth clear and specific evidence establishing a prima facie
case for each essential element of her defamation claim.
We overrule Hunton’s third issue with respect to Blaschke’s defamation
claim.
D. Breach of Contract
To prevail on a breach of contract claim, the plaintiff must show: (1) a valid
contract existed between the plaintiff and the defendant; (2) the plaintiff tendered
performance or was excused from doing so; (3) the defendant breached the terms of
the contract; and (4) the plaintiff sustained damages as a result of the defendant’s
breach. S&S Emergency Training Sols., Inc., 564 S.W.3d at 847; Toth, 557 S.W.3d
at 157.
1. Valid Contract
To prove the existence of a valid contract, the plaintiff must show: (1) an
offer was made; (2) the other party accepted in strict compliance with the offer’s
terms; (3) the parties had a meeting of the minds on the contract’s essential terms;
(4) each party consented to those terms; and (5) the parties executed and delivered
the contract with the intent that it be mutual and binding. USAA Tex. Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018); Arshad v. Am. Express Bank,
18
FSB, 580 S.W.3d 798, 804 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Here, Blaschke included with her affidavit a copy of the parties’ severance
agreement. This evidence satisfies Blaschke’s evidentiary burden with respect to
the first element of her breach of contract claim.
2. Tendered Performance
In her affidavit, Blaschke stated that she has “fully complied with the
Severance Agreement and ha[s] not disparaged Hunton.” This constitutes clear and
specific evidence that Blaschke tendered performance under the severance
agreement.
3. Breach
Under the heading entitled “Non-Disparagement and Confidentiality,” the
severance agreement states, in relevant part:
[Hunton] agrees its executive leadership team and Robert Tyler and
Steve Acker will be instructed not to and will not make disparaging
comments concerning [Blaschke].
Black’s Law Dictionary provides two definitions for “disparage”: (1) “[t]o speak
slightingly of; to criticize (someone or something) in a way showing that one
considers the subject of discussion neither good nor important”; and (2) “[t]o
degrade in estimation by disrespectful or sneering treatment.” Black’s Law
Dictionary (11th ed. 2019); see also Shannon v. Mem’l Drive Presbyterian Church
U.S., 476 S.W.3d 612, 629 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)
(interpreting contract’s non-disparagement clause, the court applied the “plain
meaning” of “disparage”).
In her affidavit, Vail stated that Tyler said that Blaschke was “let go” and
“terminated” because she had a relationship with a customer and “lied about it.”
19
These statements fall within the definitions of “disparage” and constitute prima facie
evidence that Tyler’s statements constitute a breach of the severance agreement.
See, e.g., Shannon, 476 S.W.3d at 618-19, 628-30 (church’s statements insinuating
that plaintiff left church’s employment for negative reasons gave rise to fact issue
regarding whether church breached contract’s non-disparagement clause).
4. Damages
The goal in measuring damages for a breach of contract claim is to provide
just compensation for any loss or damage actually sustained as a result of the breach.
FPL Energy, LLC v. TXU Portfolio Mgmt. Co., 426 S.W.3d 59, 69 (Tex. 2014);
Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). The normal measure of damages in a contract case is the expectancy or the
benefit of the bargain measure, which seeks to restore the plaintiff to the economic
position it would have occupied had the contract been performed. See Quigley v.
Bennett, 227 S.W.3d 51, 56 (Tex. 2007) (Brister, J., concurring in part and dissenting
in part); Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d
596, 607 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Another measure is the
reliance measure, the purpose of which is to put the plaintiff in as good an economic
position as it would have occupied had the contract not been made. Quigley, 227
S.W.3d at 56; Parkway Dental Assocs., P.A., 391 S.W.3d at 607.
To support the damages element of her breach of contract claim, Blaschke
points to the statements in her affidavit attesting that she “lost commissions from her
current employer as a direct result of the disparaging statements which were made.”
Specifically, this portion of Blaschke’s affidavit states:
Subsequent to my resignation from Hunton, I have accepted a sales
position with Goodman Air Conditioning and Heating. Based on my
compensation agreement at Goodman, if I were to bring in $50,000
worth of business this year from a particular customer, I would be paid
20
a percentage commission on such an amount, together with a bonus. I
had discussions this year while working at Goodman with the President
of S&R Services in order to secure their business. S&R Services has
declined to provide me with such business.
As previously discussed, in his affidavit Ramirez (the owner of S&R Services) stated
that he would have sent at least $50,000 worth of business to Blaschke and Goodman
Air Conditioning and Heating had he not been told Blaschke was terminated from
Hunton after lying about having an affair with a customer. These affidavits,
considered together, make a prima facie showing that Blaschke suffered damages in
the form of a lost commission and bonus.
Challenging Blaschke’s affidavit, Hunton asserts her statements cannot be
considered evidence of damages because Blaschke failed to include with her
affidavit the “compensation agreement” she references.5 Hunton cites the best
evidence rule to support its argument. See Tex. R. Evid. 1002 (“An original writing,
recording, or photograph is required in order to prove its content unless the rules or
other law provides otherwise.”).
But Hunton does not cite any case law or other authority to support the
application of this evidentiary rule to a prima facie case in the context of a TCPA
motion to dismiss. With respect to evidence, the TCPA states that, “[i]n 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.” Act of May 21, 2011, 82d Leg., R.S., ch.
341, 2011 Tex. Gen. Laws 961, 963 (amended 2019). The TCPA does not mandate
that the affidavits (1) comply with the Texas Rules of Evidence, (2) comply with the
best evidence rule, or (3) include any supporting evidence of any kind. See id. We
5
Hunton raised this objection in the trial court and received a ruling, thereby preserving
the issue for appellate review. See Tex. R. App. P. 33.1.
21
reject Hunton’s argument that the plain language of the TCPA imposes any
requirement beyond affidavits establishing clear and specific evidence of a prima
facie case.
We conclude Blaschke satisfied her burden under the second step of the TCPA
framework and brought forth clear and specific evidence establishing a prima facie
case for each essential element of her breach of contract claim.
We overrule Hunton’s third issue with respect to Blaschke’s breach of
contract claim.
IV. Qualified Privilege
Next, we address Hunton’s contention that, even if Blaschke met her TCPA
evidentiary burden, the trial court erred by denying the motion to dismiss because
Hunton established the affirmative defense of qualified privilege by a preponderance
of the evidence. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen.
Laws 961, 963 (amended 2019) (“the court shall dismiss a legal action against the
moving party if the moving party establishes an affirmative defense or other grounds
on which the moving party is entitled to judgment as a matter of law”).
A qualified privilege is an affirmative defense to a defamation claim and
attaches to a communication that is “made in good faith and the author, the recipient
or a third person, or one of their family members, has an interest that is sufficiently
affected by the communication.” Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex.
2014). Qualified privilege is an affirmative defense that the defendant has the
burden to prove unless the plaintiff’s petition affirmatively establishes the
applicability of the privilege. Id. If the defendant establishes that the privilege
applies, then “the burden shifts to the plaintiff to prove that the defendant made the
statements with actual malice.” Id.; see also Steinhaus v. Beachside Envtl., LLC,
22
No. 14-18-01048-CV, 2019 WL 6317686, at *4 (Tex. App.—Houston [14th Dist.]
Nov. 26, 2019, pet. filed).
Actual malice means “‘the making of a statement with knowledge that it is
false, or with reckless disregard of whether it is true.’” Burbage, 447 S.W.3d at 254
(quoting Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994)
(per curiam)). Reckless disregard is a subjective standard requiring evidence that
the defendant “entertained serious doubts as to the truth” of the statement. Huckabee
v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000) (internal quotation
omitted).
Here, we presume without deciding that the qualified privilege applies to the
statements at issue and conclude Blaschke met her burden via clear and specific
evidence showing the statements were made with actual malice.
Blaschke’s defamation claim asserts Tyler falsely stated that (1) Blaschke lied
about her relationship with a customer and (2) Blaschke was fired from her position
because she lied. Asserting Blaschke cannot show these alleged statements were
made with actual malice, Hunton relies on the portions of Tyler’s deposition where
he stated that (1) he “belie[ved] that [Blaschke] was not forthcoming about that
relationship” with a Hunton customer and (2) he told the sales team at the May 14
meeting that Blaschke “decided to leave [Hunton] of her own volition.” But Tyler’s
testimony on these points are directly contradicted by Blaschke’s prima facie
evidence — Blaschke’s affidavit states she was forthcoming about the relationship
and Vail’s affidavit states Tyler told the sales team at the May 14 meeting that
Blaschke had been fired. Because of this conflicting evidence, we cannot conclude
Hunton established its qualified privilege affirmative defense by a preponderance of
the evidence. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen.
Laws 961, 963 (amended 2019); see also Tex. Jewelers Assoc. v. Glynn, No. 03-17-
23
00771-CV, 2018 WL 5305721, at *5-6 (Tex. App.—Austin Oct. 26, 2018, no pet.)
(mem. op.); and Ford, 2016 WL 7323309, at *5.
We overrule Hunton’s fourth issue.
V. Nonsuit
In its final issue, Hunton asserts the trial court erred when it denied its motion
to dismiss Blaschke’s previously dismissed IIED claim. Blaschke voluntarily
dismissed her IIED claim by filing her amended petition, which was filed after
Hunton’s motion to dismiss.
“A plaintiff has an absolute right to nonsuit a claim before resting its case-in-
chief, but a nonsuit ‘shall not prejudice the right of an adverse party to be heard on
a pending claim for affirmative relief.’” CTL/Thompson Tex., LLC v. Starwood
Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 300 (Tex. 2013) (per curiam) (quoting
Tex. R. Civ. P. 162). A motion to dismiss that affords more relief than a nonsuit
constitutes a claim for affirmative relief that survives nonsuit. Abatecola, 2018 WL
3118601, at *14 (citing Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—
Fort Worth 2014, no pet.) (per curiam), overruled on other grounds by Hersh, 526
S.W.3d at 467).
TCPA motions to dismiss generally survive nonsuit because they may allow
the movant to obtain a dismissal with prejudice, attorney’s fees, and sanctions. Id.;
see also McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, 582 S.W.3d
732, 752 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Craig v. Tejas Promotions,
LLC, 550 S.W.3d 287, 296-97 (Tex. App.—Austin 2018, pet. denied); Walker v.
Hartman, 516 S.W.3d 71, 80 (Tex. App.—Beaumont 2017, pet. denied).
Specifically, the TCPA provides that the trial court “shall” dismiss a legal action if
(1) that action is based on or is in response to the moving party’s exercise of its rights
24
of free speech, petition, or association, and (2) the nonmoving party fails to establish
a prima facie case for each element of its claim. Act of May 21, 2011, 82d Leg.,
R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2019) (emphasis added). If
the trial court orders a dismissal of a legal action under the TCPA, it “shall award”
the moving party (1) court costs, reasonable attorney’s fees, and other expenses
incurred in defending against the legal action, and (2) sanctions against the party that
brought the legal action. Id. (emphasis added).
Although the dismissal of one or more (but not all) claims for relief in a
petition is not generally considered a nonsuit under Tex. R. Civ. P. 162 (see C/S
Sols., Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 305-06 (Tex. App.—
Houston [1st Dist.] 2008, no pet.)), for the purposes of awarding attorneys’ fees
under the TCPA, Blaschke’s dismissal of her IIED claim would normally be subject
to the same analysis as set forth in the cases above regarding nonsuit. Here, however,
although the IIED claim was premised on the same allegations as her defamation
and breach of contract claims, it is not subject to the TCPA analysis. The trial court
explicitly concluded Blaschke’s “nonsuit” of the IIED claim “was not in response
to” Hunton’s motion. We agree.
IIED is a “gap-filler” tort; therefore, the party asserting it must also establish
that there are no alternative causes of action that would provide a remedy for the
severe emotional distress caused by the defendant’s conduct. Kroger Tex. L.P. v.
Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 816 (Tex. 2005); Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447
(Tex. 2004). If there is an independent set of facts that would support an IIED claim,
then the claim is not barred. See Hoffmann-La Roche Inc., 144 S.W.3d at 450. If
the essence of the plaintiff's IIED claim is another tort, however, the plaintiff may
not maintain the action (regardless of whether the plaintiff chooses to assert the
25
alternative claim, the plaintiff succeeds on the alternative claim, or the claim is
barred). Id. at 447-48.
In this case, Hunton conceded that, “the factual allegations in [plaintiff’s]
Petition sound in defamation and, therefore, cannot be raised in an IIED claim.” This
admission that the IIED claim was not viable in conjunction with an already alleged
proper cause of action eliminated the theoretical viability of Blaschke’s IIED claim
and effectively transformed a potential claim into a frivolous one. Blaschke’s
dismissal of her IIED claim after learning Hunton conceded her claims sounded in
defamation serves the express purpose of Texas Rule of Civil Procedure 1 and does
not support Hunton’s claim under the TCPA.6 Blaschke’s defamation claim
survived Hunton’s motion to dismiss and therefore the dismissal of her IIED claim
could not have been related to Hunton’s motion to dismiss.
We overrule Hunton’s fifth issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
6
“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and
impartial adjudication of the rights of litigants under established principles of substantive law. To
the end that this objective maybe attained with as great expedition and dispatch and at the least
expense both to the litigants and to the state as maybe practicable, these rules shall be given a
liberal construction.” Tex. R. Civ. P. 1.
26