Aaron Whitelock and Donna Whitelock v. Jennifer Stewart, Donald Stewart, Steven Stewart, and Kathy Stewart, and D/B/A Royal Horse Farms

• Court: Court of Appeals of Texas
• Decided: February 8, 2023
• Docket: 08-21-00185-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

AARON WHITELOCK and DONNA § No. 08-21-00185-CV WHITELOCK, § Appeal from the Appellants, § 13th Judicial District Court v. § of Navarro County, Texas JENNIFER STEWART, DONALD STEWART, STEVEN STEWART, and § (TC# D21-29799-CV) KATHY STEWART, and d/b/a ROYAL HORSE FARMS, §

Appellees. §

OPINION

Appellants Aaron Whitelock and Donna Whitelock (the Whitelocks) appeal from the trial

court’s order denying their Texas Citizens Participation Act (TCPA) motion to dismiss the petition

filed by Appellees Jennifer Stewart, Donald Stewart, Steven Stewart, and Kathy Stewart, and d/b/a

Royal Horse Farms (collectively, the Stewarts) accusing the Whitelocks of defamation, intentional

infliction of emotional distress, civil conspiracy, aiding and abetting, and ratification. The

Whitelocks argue that the Stewarts did not meet their burden of establishing a prima facie case

with respect to any of their claims, that their claims were barred by res judicata and collateral

estoppel, and that the statute of limitations ran on the defamation claim. The Whitelocks further

argue that the trial court erred by granting the Stewarts’ motion for a new trial, contending it was untimely filed and the trial court had no valid basis for granting the motion. For the reasons set

forth below, we affirm the trial court’s judgment. 1

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties’ Prior Dealings

Donald and Kathy Stewart own Royal Horse Farms (RHF), a family-run horse farm in

Navarro County that breeds, raises, competes, and boards horses. Their daughter, Jennifer Stewart,

is primarily responsible for operating the farm, along with her brother, Steven Stewart, who also

owns a horse supplement company. Donna Whitelock and her son, Aaron Whitelock, similarly

own and operate a horse farm in the same area and had regular business dealings with the Stewarts.

In the summer of 2019, the Stewarts and Whitelocks became embroiled in a dispute over a

debt the Stewarts claimed the Whitelocks owed RHF for the purchase of a stallion and the leasing

of a brood mare as well as over the ownership of the brood mare’s foals. According to the Stewarts,

Donna Whitelock threatened to “ruin” their business if they did not give her the stallion and foals.

Within the same time period, Aaron Whitelock retrieved two of his horses from RHF,

including a mare named Navarra that was approximately 27 years old and a filly that had been

born there. According to Aaron, when he picked them up, the horses—and Navarra in particular—

appeared to be malnourished and neglected. Aaron consulted with a veterinarian, who reported

that the filly was two to three hundred pounds underweight, had a severe parasite load, and suffered

from malnutrition and lack of exercise. The veterinarian reported that Navarra was 400 pounds

underweight, emaciated, heavily invested with parasites, and in need of deworming, hoof care, and

dental care. Aaron concluded that the condition of both horses was attributable to the lack of an

appropriate diet and the lack of veterinary care while at RHF.

1 This case was transferred from our sister court in Waco, and we decide it in accordance with the precedent of that court to the extent required by TEX. R. APP. P. 41.3.

2 B. Jennifer Stewart’s Arrest

Shortly thereafter, Donna Whitelock filed a report with the Navarro County Sheriff’s

Office, complaining that Jennifer Stewart, who she identified as the owner of RHF, was “not taking

care of her horses”; that one of her horses had lost 500 pounds while in Jennifer’s care; and that

she had seen “a lot of poor horses in need of food on the ranch and one dead [foal] that had rotted

away to bones laying on top of the ground.” She further reported that Jennifer kept the “poor horses

hidden on the back side of her ranches.” And finally, she claimed that Jennifer had “been in trouble

before for in Florida for animal cruelty.” According to the sheriff’s incident report, deputies went

to RHF on multiple occasions but never saw any starving horses or other signs of animal cruelty.

Despite the incident report, Jennifer Stewart was arrested on August 8, 2019, on two charges of

“cruelty to livestock animals.” She was released the next day. At least one newspaper published a

story about her arrest, with the title, “Well-Known Corsicana Horse Breeder Arrested: Sheriff.”

C. The Social Media Statements

In late June of 2019, Aaron Whitelock began making comments on his personal Facebook

page regarding the condition of his horses and accused Jennifer Stewart and RHF of starving and

neglecting his and other horses in their care. The Stewarts claim that in July of 2019, the

Whitelocks created a Facebook group titled, “Royal Horse Farms Revealed,” which had the stated

purpose of providing “official news and information about the ongoing Royal Horse Farms

investigation (or at least as much that can be shared).” 2 According to the Stewarts, this page

contained similar statements accusing RHF of starving and neglecting horses as well as

information about Jennifer Stewart’s arrest. It further contained photos the Whitelocks represented

2 In his declaration, Aaron Whitelock denied creating the page, but acknowledged that he was a member of the group, whose purpose, he stated, was rescuing horses from Royal Horse Farms.

3 were photos of their horses in an emaciated condition after Aaron Whitelock picked them up from

RHF and a booking photograph from Jennifer Stewart’s arrest.

The Stewarts contend the Whitelocks also created a Facebook page titled “We Are

IALHA” on which they accused Jennifer Stewart, the then vice president of the IALHA

(International Andalusian and Lusitano Horse Association)—a well-known association in the

horse-breeding industry, of abusing horses and committing fraudulent acts in role in the

association. And, the Stewarts contend that the creators and administrators of the page, which they

believed included Aaron Whitelock, invited others to join the page, including individuals active in

the “Andalusian Equine Community” in general, board members of IAHLA, and judges of equine

competitions. The Stewarts also claim Aaron Whitelock spearheaded a referendum campaign to

remove Jennifer from her vice-president position based on the same allegations.

The Whitelocks acknowledge the controversy surrounding the animal-cruelty accusations

garnered national attention, and individuals from across the country commented on the situation

on social media. The Stewarts claim that the Whitelocks themselves reposted their accusations

hundreds of times, and that in turn, third parties reposted thousands of times on various social

media sites.

D. The Current Lawsuit

Initially, the Stewarts sent Aaron Whitelock a letter listing several statements they believed

the Whitelocks had posted on social media sites that were false and defamatory and requested that

he correct, clarify, or retract the statements. It appears that the letter was returned to the Stewarts

with hand-written comments to the effect that the statements were true and that the matter could

be settled in court. As explained below, the Stewarts thereafter filed two lawsuits against the

Whitelocks in a Navarro County statutory county court with respect to the allegedly defamatory

4 statements, one of which resulted in a nonsuit and the second of which resulted in a default

judgment in favor of the Stewarts on liability.

On September 14, 2020, the Stewarts filed their current lawsuit in the Navarro County

District Court against the Whitelocks and other named defendants (who had allegedly reposted the

challenged statements on social media or posted their own comments accusing the Stewarts of

animal cruelty), bringing claims of defamation, intentional infliction of emotional distress (IIED),

civil conspiracy, aiding and abetting, and ratification. The Whitelocks denied the Stewarts’ claims

and raised two affirmative defenses: (1) that the one-year statute of limitations had run on the

Stewarts’ defamation claim; and (2) that the Stewarts’ claims were barred by res judicata and

collateral estoppel based on the default judgment they had previously received in the statutory

county court case. The Whitelocks then filed a timely motion to dismiss all of the Stewarts’ claims

pursuant to the TCPA, alleging that the Stewarts’ lawsuit was based on or in response to their

exercise of free speech on a matter of public concern; that the Stewarts could not meet their burden

of establishing a prima facie case on their various causes of action; and that their affirmative

defenses barred the Stewarts from bringing the claims.

The Stewarts responded to the TCPA motion with various declarations and evidence in

support of their claims, but the trial court sustained multiple objections to most, if not all, of their

evidence and granted the Whitelocks’ motion to dismiss, stating only that it was dismissing the

claims under the TCPA. The trial court thereafter granted the Whitelocks’ request for attorney fees

and costs and sanctioned the Stewarts. The parties agree that the trial court’s order granting the

Whitelocks’ TCPA dismissal motion became final on June 16, 2021, when the trial court severed

the case against the Whitelocks from the remaining defendants.

5 E. The Motion for New Trial

The Stewarts then filed a motion for new trial alleging, among other things, that the

Stewarts had discovered new evidence from Raechel Rohach, one of the defendants who had

previously been dismissed from the lawsuit, as well as from Raechel’s husband, Stefan Rohach.

The Rohaches claimed the Whitelocks had made false statements in their declarations. 3 In

addition, Raechel Rohach averred that Donna Whitelock admitted that she had threatened the

Stewarts with “burning down” their farm. Although the Whitelocks argued that the motion lacked

merit and was not timely filed, as discussed below, following an unrecorded hearing, the trial court

granted the motion. The court issued an order stating that it was vacating its prior order dismissing

the Stewarts’ claims as well as its prior order striking their evidence. The order also denied the

Whitelocks’ TCPA motion to dismiss This appeal followed.

II. ISSUES PRESENTED

Although the Whitelocks list eight issues in their brief, we consolidate them into four main

categories. First, we will consider Issues One, Two, and Eight, regarding whether the trial court

erred in granting the Stewarts’ motion for new trial and in vacating its prior order sustaining the

Whitelocks’ objection to the Stewarts’ TCPA evidence. The remaining issues, which overlap with

each other, are broken into the following categories: (1) whether the Whitelocks met their burden

of establishing that the TCPA applied to the Stewarts’ defamation claim, whether the commercial

exception to the TCPA applied to that claim, whether the Stewarts met their burden of establishing

a prima facie case of defamation, and whether the Whitelocks’ affirmative defenses barred the

defamation claim; (2) whether the Stewarts’ IIED claim contained allegations that were

independent of their defamation claim and that cannot be considered protected speech under the

3 In particular, the Rohaches claimed that Aaron Whitelock falsely denied that he was involved in the referendum to remove Jennifer Stewart as the IALHA vice-president, and that Donna Whitelock falsely denied that she had been in contact with one of the other defendants in the case with whom she was accused of conspiring.

6 TCPA; and (3) whether the Stewarts’ remaining claims for civil conspiracy, aiding and abetting,

and ratification were derivative claims for which a TCPA analysis was unnecessary.

III. GRANTING THE MOTION FOR NEW TRIAL

We start with the three issues regarding whether the trial court erred in granting the

Stewarts’ motion for new trial and in vacating its prior order sustaining the Whitelocks’ objections

to the Stewarts’ evidence that they filed in response to the TCPA motion. We find all three issues

to be without merit.

A. Applicable Law

When an order is wholly void, “an order granting a motion for new trial rendered within

the period of the trial court’s plenary power is not reviewable on appeal.” See Wilkins v. Methodist

Health Care System, 160 S.W.3d 559, 563 (Tex. 2005); see also Shrewsbury v. Por, No. 08-13-

00364-CV, 2015 WL 3898801, at *1 (Tex. App.—El Paso June 24, 2015, no pet.) (mem. op.). As

the Texas Supreme Court has explained, “[w]hen a motion for new trial is granted, ‘the case shall

be reinstated upon the docket of the trial court and stand for trial the same as though no trial had

been had.’” Wilkins, 160 S.W.3d at 563 (citing Wichita Falls Traction Co. v. Cook, 60 S.W.2d

764, 768 (Tex. [Comm’n Op.] 1933)). “Thus, when the trial court grants a motion for new trial,

the court essentially wipes the slate clean and starts over.” Id.

B. Analysis

In Issue One, the Whitelocks contend the Stewarts did not timely file their motion for new

trial and that the trial court therefore lost plenary power, thereby making the order void and subject

to reversal on appeal. We disagree.

The Whitelocks correctly point out that the Stewarts had thirty days to file their motion for

new trial. See TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior to or

within thirty days after the judgment or other order complained of is signed.”). And the parties

7 agree that the trial court’s order denying the Whitelocks’ TCPA motion became final when the

trial court entered its order on June 16, 2021 severing the Whitelocks’ case from the case against

the other defendants. Accordingly, the Stewarts had until July 16, 2021 to file their motion for new

trial.

The record reflects that the Stewarts submitted their motion for filing through the court’s

e-filing system on Friday, July 16, 2021, at 5:35 p.m. However, as documented in a certified copy

of the “envelope details,” the clerk’s office notified the Stewarts that the motion had been rejected

on Monday, July 19, 2021, at 8:15 a.m., for the following reasons: “PDF documents combined-

Please separate Lead Documents.” The clerk further stated in its rejection notice: “Please Resubmit

as separate Lead Documents.” On July 23, 2021, the Stewarts resubmitted their motion and

supporting documents, and the motion was accepted for filing by the clerk that same day. 4 The

Whitelocks, however, contend that because the clerk did not initially accept the Stewarts’ motion

for new trial on July 16, 2021, the day of the filing deadline, and because the Stewarts waited until

July 23 to resubmit their filing, we should conclude that the motion was not timely filed and that

the trial court therefore lost plenary jurisdiction to hear it. We disagree.

The e-filing rules in Texas provide that “a document is considered timely filed if it is

electronically filed at any time before midnight (in the court’s time zone) on the filing deadline.”

TEX. R. CIV. P. 21(f)(5). The rules further provide that an “electronically filed document is deemed

4 The Whitelocks also contend that the Stewarts failed to timely submit their filing fee along with their initial filing, but this does not appear to be the reason that the clerk rejected the filing. In any event, the failure to timely pay a filing fee does not deprive a trial court of jurisdiction to hear a motion for new trial; instead, the motion will be considered “conditionally filed” when submitted without payment and will be deemed filed on the day it was tendered to the clerk. See NA Land Co. v. State, 624 S.W.3d 671, 674 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (recognizing that “courts have routinely held a document is ‘filed’ when it is tendered to the clerk although a filing fee is not paid until a later date.”) (citing Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993)); see also In re Lewis, 185 S.W.3d 615, 617 (Tex. App.—Waco 2006, no pet.) (recognizing that if a motion for new trial is tendered to the clerk without the filing fee, the motion is “conditionally filed,” and the motion is deemed filed on the day it was tendered to the clerk for appellate timetable purposes).

8 filed when transmitted to the filing party’s electronic filing service provider.” Id.; see also NA

Land Co., 624 S.W.3d at 674 (recognizing that a motion for new trial is filed at the time the motion

is “transmitted the document to the electronic filing service provider” for purposes of establishing

the appellate timetable); Nevarez Law Firm, P.C. v. Inv. Land Servs., L.L.C., 610 S.W.3d 567, 570

(Tex. App.—El Paso 2020, no pet.) (op. on reh’g) (recognizing same).

The trial court was without authority to reject the filing, as Rule 21(f)(11) expressly

provides that a “clerk may not refuse to file a document that fails to conform with this rule.”

TEX. R. CIV. P. 21(f)(11). Instead, under Rule 21(f)(11), the clerk was to “identify the error to be

corrected and state a deadline for the party to resubmit the document in a conforming format.” Id.;

see also Nevarez Law Firm, P.C. , 610 S.W.3d at 570. Here, while the clerk incorrectly rejected

the filing due to formatting issues and failed to provide a deadline for resubmission, the Stewarts

resubmitted the motion in the correct format within a reasonable time. We therefore conclude that

the Stewarts’ motion for new trial was timely filed. See Nevarez Law Firm, P.C., 610 S.W.3d at

570-71 (party’s motion for new trial was timely filed where it was transmitted to the electronic

filing service provider prior to the filing deadline but was wrongfully rejected by the clerk’s office,

and later resubmitted in accordance with the clerk’s instructions); see also In re Barr, No. 05-19-

00511-CV, 2019 WL 2082468, at *2 (Tex. App.—Dallas May 13, 2019, no pet.) (mem. op.) (citing

Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004) (“Once a party has satisfied his duty to put a

legal instrument in the custody and the control of the court clerk, he should not be penalized for

errors made by the court clerk.”).

The Whitelocks concede that, assuming the motion for new trial was timely filed, the trial

court issued its ruling while it still had plenary power over the case. And because we have no

authority to review the merits of its order under these circumstances, we do not reach the

Whitelocks’ argument that the trial court abused its discretion in granting the motion. See Wilkins,

9 160 S.W.3d at 563. Similarly, we do not reach the Whitelocks’ argument that the trial court erred

by vacating its prior order sustaining their objection to the Stewarts’ TCPA evidence because when

the trial court granted the motion for new trial, it “wiped the slate clean” and the proceedings began

anew. Id.

Accordingly, the Whitelocks’ Issues One, Two, and Eight are overruled.

IV. OVERVIEW OF THE TCPA We next turn to the Whitelocks’ argument that the trial court erred in denying their motion

to dismiss under the TCPA, which encompasses their remaining issues.

Enacted to protect citizens from retaliatory lawsuits that seek to intimidate or silence them

on matters of public concern, the TCPA permits a defendant to move to dismiss a lawsuit on the

ground that the “legal action is based on or is in response to a party’s exercise of the right of free

speech, right to petition, or right of association[.]” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a); In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). The TCPA states that the “[e]xercise

of the right of free speech” means a communication “made in connection with a matter of public

concern.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3); In re Lipsky, 460 S.W.3d at 586; see

also Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).

The TCPA provides a three-step burden-shifting procedure for determining whether a

lawsuit should be dismissed under the TCPA. First, the defendant/movant shoulders the initial

burden of demonstrating that the legal action “is based on, relates to, or is in response to” his

exercise of the right of free speech, the right to associate, or the right to petition, and that the

exercise was made in connection with a matter of public concern. In re Lipsky, 460 S.W.3d at 586;

see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1)(A)–(C). If the defendant meets this

initial hurdle, the burden then shifts to the plaintiff to “establish[] by clear and specific evidence a

prima facie case for each essential element of the claim [or claims] in question.” Id. (citing

10 TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). And if the plaintiff meets this burden, the burden

shifts “back to the [defendant] to prove each essential element of any valid defenses by a

preponderance of the evidence.” Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); see

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

An appellate court reviews a trial court’s ruling on a TCPA motion to dismiss de novo, and

in particular, for whether the parties each met their respective burdens under the Act. See Dallas

Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). On review, we consider all

pleadings in the record, including all supporting and opposing affidavits stating the facts upon

which the liability or defense is based. See Clinical Pathology Labs., Inc. v. Polo, 632 S.W.3d 35,

43 (Tex. App.—El Paso 2020, pet. denied) (citing Creative Oil & Gas, LLC v. Lona Hills Ranch,

LLC, 591 S.W.3d 127, 132 (Tex. 2019)); TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a)). We

view the pleadings and evidence in the light most favorable to the non-movant in determining

whether dismissal is warranted. Polo, 632 S.W.3d at 43 (citing Pacheco v. Rodriguez, 600 S.W.3d

401, 405 (Tex. App.—El Paso 2020, no pet.)). In conducting our review, we also keep in mind that

the TCPA’s “purpose is to identify and summarily dispose of lawsuits designed only to chill First

Amendment rights, not to dismiss meritorious lawsuits.” Id. at 42 (citing In re Lipsky, 460 S.W.3d

at 589; TEX. CIV. PRAC. & REM. CODE ANN. § 27.002).

We analyze each of the Stewarts’ claims separately to determine whether the TCPA

mandated their dismissal.

V. THE STEWARTS’ DEFAMATION CLAIM

Below, we analyze the Stewarts’ defamation claim and whether the parties have met their

burdens under each step of the TCPA.

11 A. Step One: Whether the TCPA Applies to the Stewarts’ Defamation Claim

1. The Challenged Statements were Communications on Matters of Public Concern

We begin with the threshold question of whether the TCPA applies to the Stewarts’

defamation claim. As a preliminary matter, we agree with the Whitelocks that the comments they

allegedly posted on the various social media sites identified in the Stewarts’ pleadings, as well as

Donna Whitelock’s report to the police, were “communications” within the meaning of the TCPA.

See generally Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam) (applying TCPA

to defamation claim relating to comments made on Facebook); Buckingham Senior Living Cmty.,

Inc. v. Washington, 605 S.W.3d 800, 807 (Tex. App.—Houston [1st Dist.] 2020, no pet.)

(recognizing that when a “person interacts with the police to report perceived wrongdoing, that

person is exercising their right to petition, as that right is defined in the TCPA”). We also agree

with the Whitelocks that the communications were made in connection with a “matter of public

concern,” as required by the Act. 5 See Hersh v. Tatum, 526 S.W.3d 462, 467–68 (Tex. 2017)

(discussing requirement that the TCPA only applies to statements that are a “matter of public

concern”).

The TCPA provides that a “‘[m]atter of public concern’ means a statement or activity

regarding . . . a matter of political, social, or other interest to the community; or . . . a subject of

concern to the public.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 (7)(B), (C). As several of

our sisters courts have recognized, communications about animal abuse can be considered of

concern to the public or of interest to the community. See Duncan v. Acius Group, LP, No. 05-18-

5 The Stewarts do not address this issue on appeal, but in the trial court, they argued that the Whitelocks’ communications were not made in connection with a matter of public concern and that they instead related to a “private dispute” between the two families, i.e., their contractual dispute over the ownership of the horses and the debts that the Whitelocks allegedly owed them. But as the Whitelocks pointed out, while the parties did have an ongoing contractual dispute, the challenged statements did not relate to that dispute.

12 01432-CV, 2019 WL 4392507, at *3 (Tex. App.—Dallas Sept. 13, 2019, no pet.) (mem. op.) (to

the extent that “appellees’ defamation claims regarding communications alleging animal abuse

and killing,” such statements were matters of public concern); Maldonado v. Franklin, No. 04-18-

00819-CV, 2019 WL 4739438, at *7 (Tex. App.—San Antonio Sept. 30, 2019, no pet.) (mem.

op.), abrogated on other grounds by Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (plaintiff’s

verbal complaints to Animal Control Services and online posts on community forums about the

defendant’s’ alleged criminal mistreatment of their dog were communications made “in connection

with” an “issue related to” a matter of public concern—animal welfare.”); Cummins v. Bat World

Sanctuary, No. 02-12-00285-CV, 2015 WL 1641144, at *10 (Tex. App.—Fort Worth Apr. 9,

2015, pet. denied) (mem. op.) (per curiam) (“[W]e agree that allegations of animal cruelty can be

a matter of public concern . . . .”). And in general, accusing someone of engaging in a criminal

offense (including animal cruelty) or of being under criminal investigation for such an offense is

a matter of public concern under the TCPA. See Beard v. McGregor Bancshares, Inc., No. 05-21-

00478-CV, 2022 WL 1076176, at *6 (Tex. App.—Dallas Apr. 11, 2022, pet. denied) (mem. op.)

(recognizing that “TCPA case law is clear that criminal acts are matters of public concern” and

that “killing animals” is a criminal act); see also Kadow v. Grauerholz, No. 02-20-00044-CV, 2021

WL 733302, at *3–4 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (plaintiff’s

allegation that he was under criminal investigation was a statement regarding a matter of interest

to the community and regarding a subject of concern to the public). We therefore conclude that

the statements the Whitelocks allegedly made accusing the Stewarts of animal abuse and of being

the subject of criminal investigations for animal cruelty in both Navarro County and Florida were

related to matters of public concern within the meaning of the TCPA. 6

6 In their brief, the Stewarts state in a footnote that they wish to “reserve their right to argue that the TCPA does not apply because the Appellants’ defamatory statements created the very public concern upon which they relate,” i.e., the controversy over their alleged animal abuse, and that the Whitelocks therefore cannot establish that their

13 We also conclude that the statements the Whitelocks allegedly made accusing Jennifer

Stewart of fraudulent acts in her capacity as vice-president of the IALHA also related to matters

of public concern. In general, courts have held that communications accusing an individual of

fraudulent activity can be considered a matter of public concern for purposes of the TCPA. See

D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 441 (Tex. 2017) (treating

communications accusing plaintiff of welfare fraud as constituting a matter of public concern for

purposes of the TCPA); Nguyen v. Trinh, No. 14-21-00110-CV, 2022 WL 805820, at *4 n.1 (Tex.

App.—Houston [14th Dist.] Mar. 17, 2022, no pet.) (mem. op.) (treating communications accusing

the plaintiff of immigration fraud and tax evasion as being matters of public concern under the

TCPA); Deaver v. Desai, 483 S.W.3d 668, 673-74 (Tex. App.—Houston [14th Dist.] Dec. 3, 2015,

no pet.) (website claiming that attorneys engaged in fraudulent activities related to matters of

public concern); AOL, Inc. v. Malouf, Nos. 05-13-01637-CV, 05-14-00568-CV, 2015 WL

1535669, at *2 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op.) (article that communicated

that a dentist had been charged with “defrauding state taxpayers of tens of millions of dollars in a

Medicaid scam” related to a matter of public concern). In addition, as the Stewarts pointed out,

some of the Whitelocks’ accusations could be construed as accusing Jennifer of criminal conduct,

such as the accusation that she tampered with the organization’s computer system to avoid

prosecution and that she used her IALHA board position to improperly further her own interests

and the interests of third parties. See Rosenthal, 529 S.W.3d at 439–40) (recognizing that an article

accusing the plaintiff of committing welfare fraud “could reasonably be construed to accuse [her]

of committing a crime”). And as explained above, accusations that a person engaged in criminal

communications were made in connection with a matter of public concern as contemplated by the TCPA. We note, however, that regardless of whether the Stewarts may “reserve” an appellate argument for our consideration, any such argument would fail, as the TCPA is not concerned with who started a particular controversy, but whether any communications made with respect to that controversy were “made in connection with a matter of public concern.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3); In re Lipsky, 460 S.W.3d at 593.

14 conduct is considered a matter of public interest under the TCPA. Notably, the record reflects that

the IALHA is a nonprofit international organization whose members compete in horse shows

around the world, and therefore, the allegations that Jennifer Stewart had committed fraud, if not

criminal activity, in her role as the IALHA’s vice-president was clearly of interest to this particular

community. See generally Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896

(Tex. 2018) (recognizing that in the context of a small residential community, “any allegation of

malfeasance and criminality by the developer and the HOA likely concerns the well-being of the

community as a whole,” and can be considered a matter of public concern under the TCPA).

Accordingly, we conclude that the Whitelocks met their initial burden of establishing that

the challenged statements arose from the exercise of their free speech and were related to a matter

of public concern.

2. The Commercial Speech Exception to the TCPA does not Apply

The commercial speech exception to the TCPA provides that:

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

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(2). The Texas Supreme Court has stated that it

construes the commercial-speech exemption to apply when:

(1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct w[as] actual or potential customers of the defendant for the kind of goods or services the defendant provides.

Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).

15 In the trial court, the Stewarts argued that this exception applied to the Whitelocks’

communications and that the Whitelocks’ comments were therefore not protected under the TCPA.

In particular, they argued that both the Whitelocks and the Stewarts were “primarily engaged in

the equine business”; that the “Whitelocks made the actionable statements in their capacity as

breeders in the equine business”; that the “statements arose out of their transactions with the

Stewarts through Royal Horse Farm”; and that their “intended audience was the parties’ potential

and actual customers for the equine business in which they both engage.”

The Stewarts presented no evidence that they were in the business of selling and leasing

goods. More importantly, the Whitelocks’ alleged comments were not made with respect to any

commercial transaction involving the sale or leasing of goods. While the parties may have had an

earlier dispute over the sale or leasing of horses, the Whitelocks’ allegedly defamatory comments

did not relate to that dispute and instead related to whether the Stewarts committed acts of animal

cruelty and whether Jennifer Stewart committed fraudulent acts in her role as vice-president of the

IALHA. Accordingly, the TCPA’s commercial exception does not apply to the Stewarts’

defamation claim. See, e.g., Deaver v. Desai, 483 S.W.3d 668, 673–74 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (commercial speech exception did not apply where the plaintiff failed to

demonstrate that the defendant was “primarily engaged in the business of selling or leasing goods

or services,” or that the statements on his website arose out of any such services); Castleman, 546

S.W.3d at 690 (the TCPA’s commercial exemption did not apply even though the defendant was

primarily engaged in the business of selling goods, but where his “allegedly defamatory statements

did not arise out of his sale of goods or services or his status as a seller of those goods and

services”).

Accordingly, the Whitelocks’ Issues Three and Four are sustained.

16 B. Step Two: The Prima Facie Case

We next turn to the second step in our TCPA analysis and the Whitelocks’ argument that

the Stewarts did not present clear and convincing evidence to support a prima facie case as to each

element of their defamation claim. We disagree with this argument.

1. Applicable Law and Standard of Review

To establish a prima facie case of defamation, the plaintiff must present clear and

convincing evidence of each of the following elements: “(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 (unless the

statement constitutes defamation per se).” Rosenthal, 529 S.W.3d at 434 (citing Lipsky, 460

S.W.3d at 593; WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). In a defamation

case, the threshold question is whether the words used “are reasonably capable of a defamatory

meaning.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018) (citing Musser

v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987)). This is an objective rather than

a subjective examination. Id. Thus, “if a statement is not verifiable as false, it is not defamatory.”

Id. (citing Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013)). “Similarly, even when a statement is

verifiable as false, it does not give rise to liability if the ‘entire context in which it was made’

discloses that it is merely an opinion masquerading as a fact.” Id. (citing Bentley v. Bunton, 94

S.W.3d 561, 581 (Tex. 2002)).

The question of whether a statement crosses the line between fact and opinion is a question

of law that we review de novo. See Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903

(Tex. App.—Dallas 2006, no pet.). We construe a statement as a whole in light of surrounding

circumstances based upon how a person of ordinary intelligence would perceive the entire

17 statement.” MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180, 202 (Tex. App.—El Paso,

2017, no pet.) (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987)).

2. The Defamatory Nature of the Statements

In their First Amended Petition, the Stewarts list hundreds of statements that the

Whitelocks (and others) allegedly made on social media posts regarding two broad categories:

(1) statements accusing them of animal abuse and cruelty in Navarro County and Florida; and

(2) statements accusing Jennifer Stewart of fraud and potentially criminal conduct in her role as

vice-president of the IALHA. The Whitelocks contend that these statements were not actionable

as defamation because they were no more than “hyperbolic opinion” statements rather than

objectively or verifiably false statements of fact, given the context in which they were made. We

disagree.

As a preliminary matter, we recognize that at least some of the statements that the Stewarts

have identified in their pleadings were, standing alone, the Whitelocks’ opinions about the

Stewarts’ character and may not have been objectively verifiable, such as the statement that the

Stewarts were “total idiots,” and that they were “nothing but liars and a bunch of frauds.” Also,

generally calling someone a “horse abuser,” standing alone, might simply be interpreted as being

the type of “‘loose, figurative or hyperbolic’ language that is immunized from defamation claims.”

See Mogged v. Lindamood, No. 02-18-00126-CV, 2020 WL 7074390, at *15 (Tex. App.—Fort

Worth Dec. 3, 2020, pet. denied) (mem. op.) (recognizing that calling someone a “sex predator,”

which does not have an “objective, verifiable meaning,” as opposed to making a statement that

someone was a “convicted felon,” which is in fact a verifiable statement, “is the sort of ‘loose,

figurative or hyperbolic’ language that is immunized from defamation claims”). Id. at *16.

Notwithstanding that category of statements, we conclude, as a matter of law, that the

Stewarts have identified numerous other statements the Whitelocks allegedly made that crossed

18 the line between opinion and fact and were objectively-verifiable, including (but not limited to):

(1) the Stewarts neglected and starved the Whitelocks’ horses while in their care, causing

permanent damage to at least one of their horses; (2) they had “dozens and dozens” of other

starving animals on their farm and had committed over thirty “offenses” involving the starvation

of horses going back over a decade; (3) Jennifer Stewart had been the subject of animal cruelty

charges in Florida and the Whitelocks had records of what she allegedly did in Florida, including

a “very thick police file from Florida outlining horrible animal abuse at their farm which was called

St Augustine Farms”; (4) Jennifer Stewart sold horses “in batches to Mexico”; (6) there were

“dead, decomposing foals on the ground” and “horse parts” on the RHF property. Additionally,

Aaron Whitelock posted photos of what he claimed to be his horses that were starved at RHF as

well as photos of other horses he suggested were also starved at RHF.

And as explained above, the Stewarts also identified statements to the effect that Jennifer

Stewart committed specific acts of fraud involving her position as the IALHA Vice President,

including tampering with the organization’s computer, using her board position to benefit herself

and others, and committing “residency fraud, elections fraud [and] membership fraud.” They also

identified statements claiming that Jennifer Stewart was the subject of “[m]ultiple tax liens,

judgements [and] repossessions,” and that there were “lots of people claiming she pulled shady

business deals.” Most, if not all, of these statements went beyond mere opinion statements and

were instead objectively verifiable, making them actionable as defamation.

In sum, the Stewarts have identified a mix of statements, some of which can be considered

defamatory and some which cannot. When a legal action is based on a such a mix of statements, a

trial court may properly deny a plaintiff’s TCPA motion to dismiss, at least with respect to the

actionable statements. See generally Beving v. Beadles, 563 S.W.3d 399, 409 (Tex. App.—

Fort Worth 2018, pet. denied) (when “a legal action is in response to both expression[s] protected

19 by the TCPA and other unprotected activity, the legal action is subject to dismissal [under the

TCPA] only to the extent that it is in response to the protected conduct, as opposed to being subject

to dismissal in its entirety”).

It is the movant-defendant’s responsibility to segregate the protected conduct from the

unprotected; in the absence of any such segregation, a trial court may deny a TCPA motion to

dismiss the plaintiff’s claim in its entirety. See Union Pac. R.R. Co. v. Chenier, 649 S.W.3d 440,

448 (Tex. App.—Houston [1st Dist.] 2022, pet. denied); see also White Nile Software, Inc. v.

Carrington, Coleman, Sloman & Blumenthal, LLP, No. 05-19-00780-CV, 2020 WL 5104966, at

*5 (Tex. App.—Dallas Aug. 31, 2020, pet. denied) (mem. op.) (“[W]hen the pleadings, evidence,

and parties’ arguments are based on a mix of protected and unprotected activity, and they do not

distinguish between the two, a defendant–movant’s motion to dismiss under the TCPA should be

denied.”). Here, the Whitelocks made no attempt to segregate any of the hundreds of statements

identified by the Stewarts with regard to whether they rose to the level of actionable defamation.

Accordingly, we conclude that the Stewarts presented sufficient evidence to support a prima facie

case of defamation to avoid dismissal under the TCPA.

3. The Comments Extended to the Entire Stewart Family

In the alternative, the Whitelocks contend that even if we find that there was sufficient

evidence to support a prima facie claim of defamation, the evidence only supported a finding that

Jennifer Stewart was the target of the Whitelocks’ challenged statements and the trial court should

have dismissed the defamation claim as to the other family members. This is not a fair assessment

of the record.

Although Jennifer Stewart appears to have been the primary focus of the Whitelocks’

statements, many of the statements expressly referred to RFH and the Stewart family in general,

accusing them globally of starving horses in their care in both Navarro County and Florida and

20 stating that RHF was under investigation for animal cruelty in Navarro County. Additionally, the

Stewarts have identified statements that expressly refer to RHF’s owners, Kathy and Donald

Stewart, and their son, Steven Stewart, accusing them of widespread animal abuse and further

accusing Steven Stewart of driving horses to kill pens for slaughter. Moreover, as set forth above,

the Stewarts contend that the Whitelocks were responsible for creating a Facebook page, titled

“Royal Horse Farms Revealed,” which purported to share “official news and information about

[the] Royal Horse Farms investigation[s],” and which contained comments accusing RHF of

widespread animal abuse. And as RHF was a family-owned and operated business, statements

accusing RHF of starving and neglecting horses reflected on the reputation of the Stewart family.

4. The Damages Element of the Stewarts’ Claim

The Whitelocks next contend that the Stewarts did not present clear and specific evidence

to establish their prima facie case of defamation with respect to the damages element of their claim.

But the Stewarts were not required to present evidence of their damages, as we determine they

alleged a claim for defamation per se (as opposed to defamation per quad), for which damages

could be presumed. See Tatum, 554 S.W.3d at 624 (distinguishing the two types of defamation);

see also In re Lipsky, 460 S.W.3d at 596 (citing Hancock v. Variyam, 400 S.W.3d 59, 66

(Tex. 2013) (indicating that whether a statement qualifies as defamation per se is a question of

law). Defamation per se includes statements accusing someone of committing a crime, or

“[r]emarks that adversely reflect on a person’s fitness to conduct his or her business or trade[.]” In

re Lipsky, 460 S.W.3d at 596 (citing Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.–Waco

2005, no pet.); Hancock, 400 S.W.3d at 66; (“A statement constitutes defamation per se if it

‘injures a person in his office, profession, or occupation.’”). Because such statements are “so

obviously hurtful,” general damages, which include non-economic losses, such as loss of

reputation and mental anguish, may be “presumed.” In re Lipsky, 460 S.W.3d at 596 (citing

21 Hancock, 400 S.W.3d at 63-64, 554 S.W.3d at 624 (“Defamation per se occurs when a statement

is so obviously detrimental to one’s good name that a jury may presume general damages, such as

for loss of reputation or for mental anguish.”).

There can be little doubt that the Whitelocks’ accusations of animal abuse and being the

subject of criminal investigations reflected on the Stewarts’ fitness to conduct what the Whitelocks

acknowledge was their “equine business.” See Cummins, 2015 WL 1641144, at *12 (where

plaintiff was a “wildlife rehabilitator and conservationist,” the defendant’s statements accusing her

of animal neglect were defamatory per se as they adversely affected her fitness for the proper

conduct of her lawful profession).

Accordingly, we conclude that the Whitelocks’ statements, if false, were defamatory per

se, and therefore, the Stewarts were not required to come forward with proof of their damages to

survive a TCPA motion. 7 See In re Lipsky, 460 S.W.3d at 596 (plaintiff was not required to come

forward with evidence of damages in order to defeat the defendant’s TCPA dismissal motion

where the plaintiff’s defamation claim was actionable per se).

C. The Third and Final Step: The Whitelocks’ Affirmative Defenses

Next, we consider the final step in the analysis, which requires us to determine whether the

Whitelocks’ two affirmative defenses barred that claim. We conclude that they did not.

The Whitelocks raised two affirmative defenses to the Stewarts’ claim of defamation and

IIED. First, they alleged that the one-year statute of limitations on the Stewarts’ defamation claim

ran before the Stewarts filed their lawsuit. Second, they alleged that the Stewarts’s claims for

7 We note that special damages, such as the type of economic damages the Stewarts describe in their declarations (including the business losses they claim occurred due to the alleged defamation), are never presumed and must be established with specificity at trial even in cases of defamation per se. See In re Lipsky, 460 S.W.3d at 593. However, in order to defeat a TCPA motion, a plaintiff need not establish his special damages with specificity. Id. at 596 (trial court properly denied TCPA motion to dismiss without proof of special damages where the plaintiff’s claim was actional per se and general damages could be presumed).

22 defamation and IIED were barred by res judicata and collateral estoppel based on a default

judgment that the Stewarts received in a Navarro County statutory county court, in which the

Stewarts allegedly sued the Whitelocks based on the same or similar allegations of defamation.

We consider each argument in turn.

1. The Tolling of the Statute of Limitations

The Whitelocks correctly point out that the statute of limitations for claims for libel and

slander is one year. See TEX CIV. PRAC. & REM. CODE ANN. § 16.002(a). They contend that by the

Stewarts’ own admissions, the Whitelocks began making their allegedly defamatory statements in

July and August of 2019. According to the Whitelocks, the statute began to run at that time,

meaning that the statute of limitations ran prior to September of 2020, when the Stewarts first filed

their original petition in this matter. We agree with the Stewarts, however, that the statute of

limitations was tolled by the Texas Supreme Court’s “Twenty-First Emergency Order Regarding

The Covid-19 State of Disaster” (the Twenty-First Emergency Order), which was in effect at the

time.

The court’s Twenty-First Emergency Order expressly stated:

“Any deadline for the filing or service of any civil case that falls on a day between March 13, 2020, and September 1, 2020, is extended until September 15, 2020. This does not include deadlines for perfecting appeal or for other appellate proceedings, requests for relief from which should be directed to the court involved and should be generously granted.”

Twenty-First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-

9091 (Tex. July 31, 2020) (available at: https://www.txcourts.gov/supreme/administrative-orders).

Despite the Twenty-First Emergency Order’s clear language, the Whitelocks argue that

because the Stewarts failed to request an extension based on a need “specifically tied to Covid-

19,” the statute of limitations was not tolled. We discount their argument, as it is premised upon

cases involving Covid-19 emergency orders that were in effect at different times during the

23 pandemic and further involve questions of whether those orders automatically extended appellate

deadlines, rather than the deadline for filing or serving a civil case. Here, the Twenty-First

Emergency Order automatically tolled the statute of limitations until September 15, 2020, and the

Stewarts filed their original petition on September 14, 2020, thus there is no statute of limitations

issue.

2. The Doctrines of Res Judicata and Collateral Estoppel

Finally, the Whitelocks contend that the Stewarts’ claims for both defamation and IIED

were barred by res judicata and collateral estoppel based on a default judgment the Stewarts

received with regard to a lawsuit they filed against the Whitelocks in Navarro County. 8 We

conclude that the Whitelocks have not met their burden of establishing that either doctrine bars the

Stewarts’ claims.

As a preliminary matter, the record does not contain a copy of the statutory county court’s

judgment or any records of that proceeding. However, the parties appear to agree that the Stewarts

sued the Whitelocks for both defamation and IIED in that proceeding and that the trial court issued

a no-answer default judgment on the issue of liability in the Stewarts’ favor. However, the Stewarts

assert, and the Whitelocks do not disagree, that the trial court never resolved the question of the

Stewarts’ entitlement to damages (if any) and never issued a final judgment in the case. 9 And the

Stewarts contend that they were not barred by either the doctrine of res judicata or collateral

8 We note that the Stewarts filed yet another lawsuit against the Whitelocks in the Navarro statutory county court in September of 2019 but voluntarily nonsuited the case in December of that year. The taking of a voluntary nonsuit, however, does not constitute litigation of the issues in a case and therefore does not prejudice the parties against seeking the same relief in a subsequent lawsuit. See Welch v. Hrabar, 110 S.W.3d 601, 607 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (recognizing that if a plaintiff takes a voluntary nonsuit, res judicata does not impede subsequent actions). 9 According to the Stewarts, the delay occurred because they were awaiting a forensic accountant’s damages report and because the Whitelocks filed a motion that was still pending. We have no record of the status of the proceedings or why there is presumably no final judgment in that case.

24 estoppel from filing their lawsuit in the district court, as they never received a final judgment on

any of their claims in the statutory county court. We agree. 10

“The doctrine of res judicata requires proof of the following elements: (1) a prior final

judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in

privity with them; and (3) a second action based on the same claims that were raised or could have

been raised in the first action.” Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 595 (Tex. App.—

Houston [14th Dist.] 2000, no pet.) (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652

(Tex. 1996)). Likewise, “[a] prior adjudication of an issue will be given estoppel effect only if it

was adequately deliberated and firm.” Frost Nat’l Bank, 29 S.W.3d at 595 (citing Mower v. Boyer,

811 S.W.2d 560, 562 (Tex. 1991)). Such an adjudication “requires a showing that: (1) the parties

were fully heard; (2) the court supported its decision with a reasoned opinion; and (3) the decision

was subject to appeal or was in fact reviewed on appeal.” Id. (citing Mower, 811 S.W.2d at 562).

In other words, both doctrines require a final judgment to bar a subsequent proceeding. Id. (citing

Mower, 811 S.W.2d at 562) (recognizing that a partial summary judgment that was not a final

appealable order could not support a plea of res judicata or collateral estoppel); see also In re

USAA Gen. Indem. Co., 629 S.W.3d 878, 883–84 (Tex. 2021) (where “the essential requirement

of a final judgment [was] lacking” in an earlier proceeding, the doctrine of collateral estoppel was

inapplicable).

We recognize that a default judgment can be considered a final judgment for purposes of

either res judicata or collateral estoppel, but only if the judgment can be considered truly final. See

Matter of Marriage of Mouret, No. 14-20-00050-CV, 2021 WL 1184190, at *3 (Tex. App.—

10 In the trial court, as well as on appeal, the Whitelocks contend that the two lawsuits were based on the same contention that the Whitelocks defamed them by accusing them of animal cruelty and were based on the same allegedly defamatory statements that were posted on social media sites. However, because we conclude that the Whitelocks failed to establish the existence of a final default judgment that barred the Stewarts from filing the current lawsuit, we need not consider whether the allegations were the same in both lawsuits.

25 Houston [14th Dist.] Mar. 30, 2021, no pet.) (mem. op.) (recognizing that a default judgment can

constitute a determination on the merits for res judicata purposes); Sprowl v. Taylor, No. 05-01-

01140-CV, 2003 WL 57743, at *3 (Tex. App.—Dallas Jan. 8, 2003, pet. denied) (mem. op) (citing

Mendez v. Haynes Brinkley & Co., 705 S.W.2d 242 (Tex. App.—San Antonio 1986, writ ref’d

n.r.e.) (applying collateral estoppel after a default judgment). A no-answer default judgment on

the issue of liability only is not a final judgment when a plaintiff seeks unliquidated damages; in

that instance, the trial court must hear evidence of damages before entering a final judgment. See

TEX. R. CIV. P. 243 (“If the cause of action is unliquidated or be not proved by an instrument in

writing, the court shall hear evidence as to damages and shall render judgment therefor . . .”);

see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (“Once a default

judgment is taken on an unliquidated claim, all allegations of fact set forth in the petition are

deemed admitted, except the amount of damages, and a court rendering a default judgment must

hear evidence of any such damages”); Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 808–

09 (Tex. App.—Waco 2007, no pet.) (recognizing that court must hear evidence of unliquidated

damages prior to entering a final judgment in a default case). Accordingly, a default judgment on

the issue of liability only is considered interlocutory in nature. See Houston Health Clubs, Inc. v.

First Court of Appeals, 722 S.W.2d 692, 693–94 (Tex. 1986) (per curiam) (default judgment that

did not resolve issue of punitive damages was interlocutory); TexPro Constr. Group, LLC v. Davis,

No. 05-14-00050-CV, 2015 WL 4984856, at *2–3 (Tex. App.—Dallas Aug. 19, 2015, no pet.)

(mem. op.) (treating trial court’s no-answer default judgment on liability as being interlocutory).

Here, the record contains no evidence that the Navarro County court issued a final

judgment on damages, thus the Whitelocks did not meet their burden of establishing that the

Stewarts’ suit was barred by either res judicata or collateral estoppel.

26 VI. THE CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Next the Whitelocks argue the trial court erred by denying its motion to dismiss the

Stewarts’ IIED claim. We disagree.

An intentional infliction of emotional distress claim requires proof that: “(1) the defendant

acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of

the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was

severe.” MVS Int’l Corp., 545 S.W.3d at 203 (citing Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.

2003) (per curiam)); see also Kroger Texas Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex.

2006). IIED was judicially created to allow recovery in “those rare instances in which a defendant

intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other

recognized theory of redress.” MVS Int’l–Corp., 545 S.W.3d at 203 (quoting Hoffmann-La Roche

Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)). Thus, “[w]here the gravamen of a plaintiff’s

complaint is really another tort, intentional infliction of emotional distress should not be available.”

Hoffmann-La Roche Inc., 144 S.W.3d at 447; see also Creditwatch, Inc. v. Jackson, 157 S.W.3d

814, 816 (Tex. 2005) (where plaintiff’s complaints were covered by other statutory remedies, she

could not assert them as intentional infliction claims). An IIED claim based solely on alleged

defamatory statements is subject to dismissal under the TCPA, as the plaintiff’s remedy in that

instance is to file a defamation claim against the defendant. See Warner Bros. Ent., Inc. v. Jones,

538 S.W.3d 781, 789 (Tex. App.—Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020) (holding that

plaintiff’s IIED claim could not proceed under the TCPA because it was based on the plaintiff’s

defamation claim).

27 B. Analysis: The Stewarts Made Allegations Beyond the Scope of the TCPA

Here, the Whitelocks contend that the Stewarts’ IIED claim stemmed solely from the

allegedly defamatory statements the Whitelocks made on their social media posts. We disagree.

The Stewarts alleged that the Whitelocks made a variety of other threats of physical harm and

conduct that were independent of their defamation claim. In particular, they allege that the

Whitelocks made “death threats, threats of arson, theft, and trespass” and that Aaron Whitelock

allegedly engaged in threatening conduct toward Jennifer Stewart at an IALHA horse show and

later caused physical damage to her property. Although we express no opinion on whether the

Stewarts’ allegations would be sufficient to raise a question of fact on each of the elements of their

IIED claim, these allegations go beyond the defamation claim allegations. See Weber v. Fernandez,

No. 02-18-00275-CV, 2019 WL 1395796, at *20 (Tex. App.—Fort Worth Mar. 28, 2019, no pet.)

(mem. op.) (where plaintiff made factual allegations in support of his IIED claim, which were

independent of his claims for defamation, the trial court did not err in refusing to dismiss the IIED

claim).

For similar reasons, we conclude that the TCPA does not apply to the Stewarts’ claim that

the Whitelocks engaged in threatening, assaultive, and destructive conduct, as such conduct cannot

be considered a protected communication about a matter of public concern within the meaning of

the TCPA. See, e.g., Sanchez v. Striever, 614 S.W.3d 233, 245–46 (Tex. App.—Houston

[14th Dist.] 2020, no pet.) (holding that protesters’ actions in assaulting plaintiff was not a

protected communication under the TCPA); Universal Plant Services, Inc. v. Dresser-Rand

Group, Inc., 571 S.W.3d 346, 371 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (Keyes, J.,

concurring) (claims that defendants engaged in various torts, including conversion, theft, and

breach of contract, were not the types of claims that fell “within the type of conduct or

communication covered by the TCPA”); Neely v. Allen, No. 14-19-00706-CV, 2021 WL 2154125,

28 at *9 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (mem. op.) (plaintiff’s claims for various

torts, including assault, IIED and conversion did not fall within the scope of the TCPA as they did

not involve protected speech or conduct). Consequently, we cannot say that the Stewarts’ IIED

claim, which involved allegations of both threatening and assaultive conduct, was either “based

on or [was] in response to” the Whitelocks’ exercise of their right to free speech as that term is

used in the TCPA.11 See Chenier, 649 S.W.3d at 446 (concluding that defendant did not meet its

burden of establishing that the plaintiff’s claims for negligence and nuisance were “based on” or

“in response” to the defendant’s protected communications within the meaning of the TCPA)

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3)); Serafine v. Blunt, 466 S.W.3d 352, 360

(Tex. App.—Austin 2015, no pet.) (where tortious-interference counterclaim was based in part on

opposing party’s alleged threats made outside the context of the lawsuit, the opposing party did

not satisfy her initial burden to show that these portions of the claims were subject to the TCPA).

Moreover, we note that even if some of the Stewarts’ allegations in their IIED claim

overlapped with their defamation claim, this would still not subject the IIED claim to dismissal

under the TCPA per the discussion above regarding a trial court properly denying a TCPA motion

to dismiss in cases involving a mix of protected and unprotected conduct that the defendant-

movant has not parsed out.

Given our resolution of this issue, we need not address whether the allegations set forth

rise to the level of extreme or outrageous conduct as required to support an IIED claim or whether

11 The former version of the TCPA was broader in nature and allowed a movant to seek dismissal based on a showing that the claim against him was “based on, relates to, or is in response to” the movant’s exercise of a protected right; however, the Legislature narrowed the scope of the TCPA’s applicability in the current version of the Act, which is applicable to this case, by omitting the “relates to” provision. ML Dev, LP v. Ross Dress for Less, Inc., 649 S.W.3d 623, 626 (Tex. App.—Houston [1st Dist.] 2022, pet. denied) (op. on reh’g) (citing Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684). In turn, this increased the burden on a movant seeking dismissal of the claims against him under the Act. ML Dev, LP, 649 S.W.3d at 626 (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 27.005(b) (current version); Laura Lee Prather & Robert T. Sherwin, The Changing Landscape of the Texas Citizens Participation Act, 52 Tex. Tech L. Rev. 163, 169 (2020) (noting that deletion of “relates to” increases burden on movants seeking dismissal)).

29 the Stewarts came forward with any proof that the Whitelocks engaged in any of the allegedly

threating conduct. See MVS Int’l Corp., 545 S.W.3d at 203 (requiring evidence of extreme and

outrageous conduct to support an IIED claim).

VII. THE STEWARTS’ REMAINING CLAIMS

Last, we turn to the Stewarts’ claims of civil conspiracy; aiding and abetting; and

ratification, and the Whitelocks’ contention that the Stewarts did not meet their burden of

establishing a prima facie case in support of any of these three claims. Because we do not treat

these claims as “independent torts” and because their existence is derivative of the Stewarts’

defamation claim, we conclude that the trial court properly denied the Stewarts’ motion to dismiss

them under the TCPA.

A. The Claims for Civil Conspiracy and Aiding and Abetting

The Texas Supreme Court has held that civil conspiracy is not an independent tort; instead,

it is a theory of vicarious liability by which a plaintiff may seek to hold another individual liable

for the commission of an unlawful act that the individual did not commit but that his co-conspirator

did. See Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 141 (Tex. 2019). It is

therefore a “derivative claim” that depends on the existence of an “underlying tort that is the object

of the conspiracy.” Id. at 148. Similarly, the Texas Supreme Court has held that “aiding and

abetting” is a theory of “derivative or vicarious liability” that depends on the existence of an

underlying tort. See Nettles v. GTECH Corp., 606 S.W.3d 726, 738 (Tex. 2020) (recognizing that

both “[a]iding and abetting and conspiracy are theories of derivative or vicarious liability”) (citing

KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 85–86 (Tex. 2015). These “liability-spreading

theories depend upon liability for an underlying tort, and they survive or fail alongside that tort.”

Id. (citing Agar Corp., 580 S.W.3d at 141).

30 When a defendant brings a TCPA motion seeking to dismiss a derivative claim of either

“civil conspiracy” or “aiding and abetting,” the court need only analyze the issue of whether the

underlying tort upon which those claims rely survives the motion. See, e.g., Thibodeaux v. Starx

Inv. Holdings, Inc., No. 03-20-00613-CV, 2021 WL 4927417, at *11 (Tex. App.—Austin Oct. 22,

2021, pet. dism’d) (mem. op.). And if the underlying tort survives the motion, i.e., the plaintiff

meets its burden of establishing a prima facie case of the underlying tort, the court need not

separately analyze whether the plaintiffs established a prima facie case on their derivative claims.

Id. (citing Warner Bros. Ent., Inc. v. Jones, 538 S.W.3d 781, 814 (Tex. App.—Austin 2017), aff’d,

611 S.W.3d 1 (Tex. 2020) ((quoting Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig.

proceeding), for proposition that “courts ‘do not analyze the trial court’s refusal to dismiss

plaintiffs’ causes of action for conspiracy separately from its refusal to dismiss their other causes

of action’” because conspiracy is a derivative tort)).

Here, the Stewarts’ claims for civil conspiracy and aiding and abetting are based on the

underlying tort of defamation, i.e., that Aaron and Donna Whitelock conspired to defame the

Stewarts, and, in essence, to ruin their business. Since we have already concluded that the Stewarts

met their prima facie case burden on defamation (and that no affirmative defenses barred their

defamation claim), we need not independently review their derivative claims. Accordingly, the

trial court did not err by denying the Whitelocks’ motion to dismiss those two “claims.”

B. The Claim for “Ratification”

We reach a similar conclusion on the Stewarts’ claim for “ratification.” In their First

Amended Petition under the heading “Ratification,” the Stewarts alleged that “Each Defendants

[sic] ratified the libel, slander, and/or intentional infliction of emotional distress committed by all

other Defendants through approving such conduct after acquiring full knowledge of the same with

the intent of giving validity to the tortious conduct.” Ratification is a party’s agreement to be bound

31 by another party’s act after the fact; at most, any such claim is yet another method of holding a

person vicariously liable for another’s action. See generally BPX Operating Co. v. Strickhausen,

629 S.W.3d 189, 196 (Tex. 2021). Accordingly, we treat the Stewarts’ ratification “claim” as being

a derivative claim which is, at least in part, dependent on the Stewarts’ defamation claim. Since

we have already concluded that the Stewarts’ defamation claim survives the Whitelocks’ TCPA

motion, we need not independently review the validity of the ratification claim.

In summary, we agree with the Whitelocks that at least a portion of their challenged

communications constituted protected speech under the TCPA and did not fall within the

commercial speech exception to the TCPA, and we therefore sustain Issues Three and Four.

However, we conclude that: (1) the Stewarts met their burden of establishing a prima facie case of

defamation; (2) the Stewarts made factual allegations in support of their IIED claim that did not

fall within the purview of the TCPA; and (3) the Stewarts’ remaining claims were all of a derivative

nature and therefore did not warrant an independent review under the TCPA. We overrule the

Whitelocks’ remaining issues: Issues Five, Six, and Seven.

VIII. CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment denying the

Whitelocks’ TCPA motion to dismiss.

LISA J. SOTO, Justice

February 8, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.