Opinion issued December 29, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-20-00216-CV ——————————— CHOCTAW CONSTRUCTION SERVICES LLC, Appellant V. RAIL-LIFE RAILROAD SERVICES, LLC; DAVID PINA TORRES; ESEQUIEL OLMEDA, Appellees
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 19-DCV-268460
OPINION
Rail-Life Railroad Services, LLC sued Choctaw Construction Services, LLC
for tortious interference with contract, business disparagement, and other claims
arising out of allegedly false allegations by Choctaw. Choctaw sought dismissal of the suit under the Texas Citizens Participation Act (“TCPA”).1 The trial court denied
Choctaw’s motion to dismiss. On appeal, Choctaw challenges the trial court’s order
denying its TCPA motion. We reverse and remand.
Background
Choctaw is a construction company specializing in railroad construction,
railroad maintenance, railroad emergency services, soil excavation, and
underground utilities. In June 2017, Choctaw hired Esequiel Olmeda as a supervisor.
The year after, Choctaw hired David Pina Torres as a general foreperson. Olmeda
and Torres collectively had over two decades of experience in railroad maintenance
and construction. Their duties included providing services to Choctaw’s clients,
including Union Pacific Corporation.
Around July 2019, while still working for Choctaw, Olmeda and Torres
formed Rail-Life to “become a direct supplier/vendor/contractor for Union Pacific.”
Choctaw later terminated Olmeda and Torres upon learning about their rival
business. Union Pacific required every contractor to retrieve eRailsafe badges from
terminated employees. An eRailsafe badge is an identification card that Union
Pacific developed to comply with the Department of Homeland Security’s
1 TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. 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 after the effective date of the amendments, all citations to the TCPA in this opinion are to the amended statute. 2 requirements issued in the wake of the September 11, 2001 terrorist attacks. See 6
U.S.C. § 1161–1172 (addressing railroad security recommendations). Union Pacific
required every person entering its property to show an eRailsafe badge identifying
the person’s name and employer.
After Choctaw fired Olmeda and Torres, their company, Rail-Life, sued
Choctaw for tortious interference with prospective business relations and existing
contracts, business disparagement, defamation, and unfair competition. Rail-Life
alleged that Choctaw had falsely accused Rail-Life’s employees of using Choctaw-
issued eRailsafe badges to gain access to Union Pacific’s worksite. Rail-Life also
alleged that C. Baker, a general manager at Choctaw, reported Rail-Life’s misuse of
Choctaw badges to “Union Pacific’s RailRoad Police.” Union Pacific investigated
these allegations. During the investigation, Union Pacific temporarily prohibited
Rail-Life from working on any of its existing projects. Union Pacific also did not
invite Rail-Life to bid on any new projects during this time. Rail-Life denied the
allegations that it had taken and misused Choctaw’s badges.
Along with the accusations of misusing badges, Rail-Life alleged that
Choctaw had falsely accused Rail-Life of stealing fuel and equipment from
Choctaw. It claimed that Choctaw general manager Baker told Union Pacific that
Rail-Life had stolen fuel belonging to Choctaw and used Choctaw’s equipment
without permission. Based on these false accusations, Union Pacific cancelled its
3 contracts with Rail-Life, causing Rail-Life to lose income and profits from at least
six existing contracts.
In response, Choctaw answered, filed special exceptions, and moved to
dismiss under Rule 91a of the Texas Rules of Civil Procedure. Rail-Life amended
its original petition and nonsuited most of its claims, leaving only claims against
Choctaw for tortious interference with an existing contract and business
disparagement. Choctaw withdrew is Rule 91a motion to dismiss, and the trial court
entered an order dismissing the other three claims.
Choctaw filed a TCPA motion to dismiss Rail-Life’s claims, arguing that
Rail-Life’s lawsuit was based on or was in response to Choctaw’s exercise of the
right of free speech and the right to petition. Choctaw maintained that Rail-Life was
targeting its constitutional right to speak freely and to petition based on “Choctaw’s
report to Union Pacific police regarding Rail-Life’s improper use of Choctaw’s
eRailsafe badge.” Choctaw argued that Rail-Life’s claims “necessarily involve
Choctaw’s communications with semi-government personnel” about subjects of
concern to the public.
Citing Union Pacific’s policy and federal laws, Choctaw contended that its
communications and report about Rail-Life’s wrongful display of an eRailsafe badge
belonging to Choctaw were subjects of concern to the public because Union Pacific
implemented and enforced a Controlled Access Policy “to meet the U.S. Department
4 of Homeland Security requirements.” Within this policy, as Choctaw explained,
Union Pacific required all suppliers to display a company-issued eRailsafe badge
prior to entering its property for safety reasons. A wrongful display of an eRailsafe
badge belonging to another company compromises the safety and security of not
only the workers on Union Pacific’s worksite, but also the public at large.
Choctaw also asserted that Rail-Life could not establish a prima facie case on
each element of its claim of tortious interference with contract, as required by the
TCPA to avoid dismissal of its underlying suit against Choctaw. And dismissal of
Rail-Life’s suit was required because, even if Rail-Life had established a prima facie
case, Choctaw had established the affirmative defense of justification to tortious
interference with contract. Choctaw did not assert any affirmative defenses for Rail-
Life’s business-disparagement claim, but it argued that Rail-Life failed to establish
the elements of its business-disparagement claim by clear and specific evidence.
Choctaw attached evidence supporting its assertions, including Baker’s declaration,
Union Pacific’s Controlled Access Policy, copies of 6 U.S.C. sections 1161 through
1172, and a congressional hearing discussing the effect of background and security
clearances on the transportation workforce.
In response, Rail-Life requested that the court deny Choctaw’s TCPA motion
and asserted that the claims alleged in its amended petition were not the kind that
the TCPA covered, but, instead, were based “a pattern of misconduct by [Choctaw]
5 that evidences the intention to interfere with Rail-Life’s contracts with Union Pacific
and a pattern of conduct intended to disparage its reputation and business.” Rail-Life
did not address Choctaw’s free-speech arguments. Instead, Rail-Life argued that it
could establish a prima facie case on each element of its claims. It referenced the
evidence set out in the affidavits of Olmeda and Torres, among other evidence.
Rail-Life also pointed out Choctaw’s failure to assert an affirmative defense
to its business-disparagement claim. And in explaining why Choctaw failed to
establish justification as an affirmative defense to its tortious-interference claim,
Rail-Life contended that Choctaw was not justified in engaging in a pattern of
intentional misconduct by making “untrue statements” to Union Pacific because
Choctaw had failed to prove that its “interference was a good faith claim to a
colorable legal right.” Rail-Life attached supporting documents to its response,
including an email from Olmeda to Union Pacific, stating, in part
I am touching base with you on the [sic] behalf of the issues/rumors that are taking place[.] I’m not running illegal employees. [T]hey are all up to date. . . . I have all needed [sic] paper work [sic] to present to you or if anyone else would need[,] sir. My guys[’] e-rail[safe] badges are processed and awaiting via mail to my office. They will be in this week[,] sir. [A]s soon as [I] receive them[,] I can send them your way via e-mail.
Rail-Life also attached Torres and Olmeda’s affidavits, Rail-Life’s insurance policy,
and equipment rental agreements and receipts, among other things.
6 In response, Choctaw asserted that it was justified in reporting the misuse of
badges to Union Pacific based on state and federal law requirements as well as Union
Pacific’s policy. It also argued that Rail-Life’s evidence confirmed that Rail-Life’s
employees displayed Choctaw-issued eRailsafe badges to Union Pacific. Choctaw
objected to Olmeda’s affidavit as untimely and Rail-Life’s other evidence as
misleading and inadmissible.
The trial court overruled Choctaw’s objections and denied Choctaw’s TCPA
motion. Choctaw filed this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(12) (authorizing interlocutory appeal of order denying motion to dismiss
filed under TCPA Section 27.003).
Texas Citizens Participation Act
A. Standard of review
We review de novo the denial of a TCPA motion to dismiss. Better Bus.
Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). When determining whether to dismiss
the legal action, the trial court considers “the pleadings, evidence a court could
consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and
opposing affidavits stating the facts on which the liability or defense is based.” TEX.
CIV. PRAC. & REM. CODE § 27.006(a). We evaluate the basis of a legal action only
“by the plaintiff’s allegations” and view the evidence in the light most favorable to
7 the nonmovant. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); Dolcefino v.
Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017,
no pet.).
B. Applicable law
The purpose of the TCPA is to “encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise participate
in government to the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE § 27.002. It does so by allowing defendants who
claim that a plaintiff has filed a meritless lawsuit in response to the defendant’s
proper exercise of a constitutionally protected right to seek dismissal of that action,
attorneys’ fees, and sanctions at an early stage in the litigation. See Dolcefino, 540
S.W.3d at 198. Section 27.003(a) of the TCPA provides that a party may move to
dismiss a legal action that “is based on or is in response to [that] party’s exercise of
the right of free speech, right to petition, or right of association.” TEX. CIV. PRAC. &
REM. CODE § 27.003(a).2
2 Though not applicable to this case, a party may also move to dismiss a legal action that “arises from any act of that party in furtherance of [that] party’s communication or conduct described by Section 27.010(b) [of the TCPA].” Id.
8 Choctaw, as the TCPA movant, bears the initial burden of showing by a
preponderance of evidence that its underlying suit against Rail-Life is based on or is
in response to its exercise of one of the three First Amendment rights listed in the
TCPA statute. Id. § 27.005(b)(1). If Choctaw meets this burden, then the burden
shifts to Rail-Life to establish “by clear and specific evidence a prima facie case for
each essential element of” its claims. Id. § 27.005(c). Even if Rail-Life establishes a
prima facie case for both of its claims, dismissal of the suit is required if Choctaw
“establishes an affirmative defense or other grounds on which the moving party
[under the TCPA] is entitled to judgment as a matter of law.” Id. § 27.005(d).
C. Applicability of the TCPA to Rail-Life’s claims
Choctaw’s TCPA motion alleges Rail-Life’s suit against it is based on or is in
response to Choctaw’s exercise of two of its First Amendment rights, the right of
free speech and the right to petition. We first address free speech.
Rail-Life alleges that Choctaw tortiously interfered with its contracts with
Union Pacific by making “false representations [and] disparaging words regarding,
including but not limited to badges, equipment, [and] fuel.”3 Choctaw replies that its
3 Rail-Life contends that the suit is based on a “pattern of misconduct by Choctaw that evidences the intention to interfere with Rail-Life’s contracts with Union Pacific and a pattern of conduct intended to disparage its reputation and business.” Rail-Life’s allegations—claiming that Choctaw accused Rail-Life’s employees of misusing Choctaw-issued security badges and stealing Choctaw’s fuel and property—are so intertwined within Choctaw’s TCPA motion, Rail-Life’s response, and the parties’ briefing on appeal without separate analyses for each. We therefore 9 communications to Union Pacific are of public concern based on federal and state
laws requiring rail carriers, like Union Pacific, to enact and enforce policies and
procedures for workplace safety and national security.
The TCPA defines “exercise of the right of free speech” as a “communication
made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE
§ 27.001(3). A “matter of public concern” is defined in one of three ways: “(A) a
public official, public figure, or other person who has drawn substantial public
attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter
of political, social, or other interest to the community; or (C)
a subject of concern to the public.” Id. § 27.001(7). Choctaw contends that the third
definition of “matter of public concern” applies here. We agree.
The United States Supreme Court has recognized railroads as matters of
public concern. See Union Tr. Co. of N.Y., v. Ill. Midland Ry. Co., 117 U.S. 434, 455
(1886) (“[A] railroad is a matter of public concern.”); Dodge Cnty. Com’rs v.
Chandler, 96 U.S. 205, 208 (1877) (noting that railroads are “public highways” and
constitute “things of public concern”). Private railroad companies, like Union
Pacific, are “quasi-public” entities “engaged in the performance of public duties.”
Eckington & Soldiers’ Home Ry. Co. v. McDevitt, 191 U.S. 103, 114 (1903); see N.
will address their allegations as part of our analysis, to the extent it is necessary for us to do so. 10 Sec. Co. v. United States, 24 S. Ct. 436, 445 (1904) (characterizing railroads as
“quasi-public corporations”); Davis v. Kirklen, 253 S.W. 330, 332 (Tex. Civ. App.—
San Antonio 1923, writ dism’d w.o.j.) (“Being quasi[-]public corporations, carriers
by rail are granted extraordinary powers with the express view of rendering adequate
and impartial service to the public.”).
The record shows that Union Pacific developed the eRailsafe badge under its
Controlled Access Policy to comply with these requirements under federal law. Title
6 of the United States Code governs domestic security “surface transportation
systems” to “enhance the protection of the people, property, and territory of the
United States of America against terrorist attacks.” 6 U.S.C. § 1101. Surface
transportation systems include railroads. See id. § 1101(2)(e). Section 1170
mandates that the Department of Homeland Security create rules for railroads to
generate procedures for security background checks for “a contractor or
subcontractor of a railroad carrier.” 6 U.S.C. § 1170(a).
Choctaw asserts that the communications here included its inquiries about
whether Rail-Life had violated federal laws, state laws, and Union Pacific’s
Controlled Access Policy by misusing security access badges—i.e., eRailsafe
badges—to gain access to Union Pacific’s property; and it argues it made these
inquiries in connection with subjects of concern to the public. Choctaw cites Union
Pacific’s Controlled Access Policy, which states:
11 [Union Pacific] Railroad and the Supplier have a mutual interest in providing a safe workplace for the employees of both parties and in maintaining the integrity and security of Railroad’s facilities. To help ensure this goal, the Railroad has instituted a Controlled Access Policy. All persons seeking admission to Railroad property will apply (the “Applicants”) for admission to the property. Supplier and its subcontractors, including its personnel and employees, must be in full compliance with the Controlled Access Policy within thirty (30) days of performing Work on Railroad property. Supplier and its subcontractors shall, at their sole cost and expense, conduct background investigations of Applicants prior to their admission to the property. Prior to any new or existing employee or subcontractor of Supplier working at or regularly visit any Railroad facility, Supplier or subcontractor shall register with Railroad’s approved risk assessment company (currently eRailsafe is the Union Pacific Railroad approved risk assessment company).
****
D. Applicant is responsible for wearing that badge and carrying another form of government[-]issued ID, at all times, when on Railroad property.
E. Supplier shall be responsible for managing and recovering the Identification Badge from their employees who resign, retire or are terminated.
F. Supplier will be responsible for enforcement of this program, however, both the Railroad and the Federal Railroad Administration may audit for compliance. Should Supplier be found out of compliance, any and all fines or penalties incurred will be the sole obligation of the Supplier.
To avoid potential liability to Union Pacific, Choctaw, like any other supplier, had
to report any violations of Union Pacific’s policy upon suspecting unauthorized use
of its eRailsafe badges. Choctaw contends it was concerned about potential
12 violations because it had not retrieved the Choctaw-issued eRailsafe badges from
Olmeda and Torres when they were terminated.
Texas courts have consistently held that communications about potential
violations of internal policies and procedures involving health, safety, and
environmental risks constitute a matter of public concern. See, e.g., ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017) (per curiam) (“matter of
public concern” established because communications involved an alleged failure to
comply with a process known to “reduce the potential environmental, health, safety,
and economic risks associated with noxious and flammable chemicals overfilling
and spilling onto the ground”); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509–10
(Tex. 2015) (per curiam) (communications about nurse anesthetist’s alleged
violations of medical provider’s sterile protocol policy was matter of concern to the
public).
This issue is much like that in McDonald Oilfield Operations, LLC v. 3B
Inspection, LLC, 582 S.W.3d 732 (Tex. App.—Houston [1st Dist.] 2019, no pet.)
(op. on reh’g). In that case, McDonald sponsored and maintained “Operator
Qualifications” showing that the individual employees were qualified under federal
standards to perform pipeline monitoring tasks. Id. at 736. 3B Inspection alleged that
McDonald communicated about cancelling its sponsorship of individual employees’
Operator Qualifications. Id. at 738. 3B Inspection and the individual employees sued
13 McDonald for business disparagement, defamation, and tortious interference with a
contract based on allegations of false representations and the suspension of its
sponsorship to tortiously interfere with 3B Inspection’s contracts. Id. at 739.
McDonald moved to dismiss under the TCPA. Id. at 740. The trial court
denied McDonald’s motion, and McDonald appealed, arguing that the TCPA applied
to its right to free speech because the communications were about either the theft of
its equipment or the operation and safety of oil and gas pipelines, implicating a
matter of public concern. Id. at 746. On review, a panel of this Court held that the
TCPA applied to McDonald’s exercise of its free-speech rights. Id. The
communications constituted matters of public concern because they were about
“qualifications and sponsorship of the individual employees to perform certain tasks
that could impact environmental, health, safety, and economic concerns” associated
with the pipeline industry. Id.
Like McDonald, Rail-Life’s communications to Union Pacific and its officers
were based on or in response to Choctaw’s exercise of its right of free speech.
Choctaw’s communications were in connection with a subject of public concern
because they were about Rail-Life’s alleged failure to present eRailsafe badges
under a policy implemented for safety and national security to reduce the risk of
“terrorist attack on railroad carriers.” 6 U.S.C. § 1161(a). Communications about
14 compliance with safety and security standards governed by state and federal laws
are matters of public concern.
Because it has been long held that railroads are matters of public concern and
because railroad carriers like Union Pacific are quasi-public entities engaged in the
performance of public duties have enacted policies in compliance with state and
federal laws to protect the public against risks of potential terrorist attacks,
Choctaw’s communications were made in connection with a matter of public
concern.
We conclude that Choctaw has met its initial burden of showing by a
preponderance of the evidence that Rail-Life’s lawsuit was based on or in response
to Choctaw’s exercise of its right to speak freely about the violation of laws and
policies that could compromise the safety and security of Union Pacific and its
employees, suppliers, and contractors. So we need not address Choctaw’s alternative
argument that Rail-Life’s lawsuit was filed in response to Choctaw’s exercise of its
right to petition. See McDonald, 582 S.W.3d at 747; Coleman, 512 S.W.3d at 900–
01 (oral and written communications made during safety meeting constituted matters
of public concern because they involved process established to reduce potential
environmental, health, safety, and economic risks).
Because we hold that at least one of Choctaw’s constitutional rights invokes
the TCPA, we now determine whether Rail-Life has established by clear and specific
15 evidence a prima facie case for each element of its claims for tortious interference
with a contract and business disparagement.
D. Prima facie case and affirmative defense
1. Standard of review
To make a showing of a prima facie case, Rail-Life, as the nonmovant under
the TCPA, must provide “the ‘minimum quantum of evidence necessary to support
a rational inference that the allegation of fact is true.’” In re Lipsky, 460 S.W.3d 579,
590 (Tex. 2015) (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (per curiam)). In explaining the liberal application of “prima facie
proof,” the Texas Supreme Court has observed that
Prima facie proof is not subject to rebuttal, cross-examination, impeachment or even disproof. The evidence as a whole may well show that prima facie proof was misleading or wrong.
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993) (op. on reh’g).
2. Tortious interference with contract
Rail-Life alleges that Choctaw engaged in a pattern of wrongful conduct
aimed solely at interfering with Rail-Life’s contracts with Union Pacific by
intentionally making false allegations that it had allegedly stolen Choctaw’s
equipment and fuel and improperly displayed eRailsafe badges belonging to
Choctaw. Choctaw concedes it engaged in communications with Union Pacific
about Rail-Life’s alleged conduct, but it asserts that it was justified in doing so
16 because it was exercising its own contractual and First Amendment rights.
Assuming, without deciding, that Rail-Life established a prima facie case for each
element of its claim for tortious interference with a contract, we determine whether
Choctaw has established an affirmative defense of justification.
Under Texas law, tortious interference with a contract occurs when a party
interferes with an existing contract willfully and intentionally and the interference
proximately causes actual damages or loss. See Exxon Mobil Corp. v. Rincones, 520
S.W.3d 572, 588 (Tex. 2017). “Justification is an affirmative defense to such a claim
and ‘is established as a matter of law when the acts the plaintiff complains of as
tortious interference are merely the defendant’s exercise of its own contractual
rights.’” Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 53
(Tex. 2017) (quoting Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 81 (Tex. 2000)). Even so, justification is not an affirmative defense if
the plaintiff pleads and proves methods of interference that are tortious in
themselves. Fin. Review Servs., 29 S.W.3d at 81.
Although it raises several allegations in support of its tortious-interference
claim, Rail-Life does not dispute that Choctaw and Rail-Life were both contractually
obligated to comply with Union Pacific’s Controlled Access Policy. In fact, Choctaw
and Rail-Life, as Union Pacific’s suppliers, were “responsible for managing and
recovering” eRailsafe badges from their employees who are terminated. They were
17 also “responsible for enforcement” of this policy. Failure to comply with this policy
would have subjected Choctaw or Union Pacific to fines or penalties. Thus, Choctaw
had the contractual right to suspend Torres and Olmeda’s eRailsafe badges after they
were terminated. Choctaw also had the contractual right to inform Union Pacific that
Torres and Olmeda no longer worked for Choctaw and worked for Rail-Life instead.
And, most importantly, Choctaw had the contractual right to engage in
communications communicate about the misuse of Choctaw-issued eRailsafe
badges when Union Pacific reported that a Rail-Life employee had allegedly
displayed a Choctaw-issued badge.
We, therefore, conclude that Choctaw was justified in communicating with
Union Pacific about potential violations of the Controlled Access Policy. The trial
court erred by denying Choctaw’s TCPA motion to dismiss Rail-Life’s claim for
tortious interference with contract because Choctaw established the affirmative
defense of justification as a matter of law. See TEX. CIV. PRAC. & REM. CODE §
27.005(d).
3. Business disparagement
Business disparagement is a tort that “protects economic interests.” Forbes
Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). To prevail on
a business-disparagement claim, a plaintiff must establish that (1) the defendant
published false and disparaging information about it, (2) with malice, (3) without
18 privilege, (4) that led to special damages to the plaintiff. See id. Choctaw contends
that Rail-Life failed to produce evidence of three elements of its business-
disparagement claim: false and disparaging information, malice, and special
damages.
As for the first element, Rail-Life contends that Choctaw made false
allegations about Rail-Life employees wrongfully displaying eRailsafe badges
belonging to Choctaw to Union Pacific. Rail-Life explains that these allegations
were false because Rail-Life had applied for its own badges for its employees. In
response, Choctaw argues that Rail-Life’s own evidence shows that the statement
was true. A showing of truth of an allegedly defamatory statement negates the
element of falsity for a business-disparagement claim. See Hurlbut v. Gulf Atl. Life
Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987) (“Regarding falsity, the common law
presumed the defamatory statement to be false and truth was a defensive matter.”).
Rail-Life presented evidence, including affidavits, emails, and eRailsafe’s
website to establish that Choctaw’s statement—that Rail-Life’s employees
presented Choctaw-issued badges to Union Pacific—was false because Rail-Life
had applied for badges for its employees and did not need to display badges
belonging to Choctaw. According to their affidavits, Torres and Olmeda claimed
that Rail-Life “applied and obtained for [eRailsafe] badges for its employees.” Rail-
Life also introduced two emails from Olmeda to Union Pacific employees stating
19 that Rail-Life had “processed” eRailsafe badges for its employees and that he would
provide Union Pacific copies of the badges when he received them by mail. In
addition, Rail-Life introduced the status page of eRailsafe’s website confirming that
Rail-Life’s application for employee badges was pending at the time of the emails.
But Choctaw does not dispute that Rail-Life had applied for eRailsafe badges
or that the application was pending when Union Pacific requested Rail-Life’s
employees to display their badges. Nor does Choctaw dispute that Rail-Life had
eventually received eRailsafe badges for its employees. Choctaw argues, instead,
that Rail-Life’s employees displayed Choctaw-issued badges, a statement that Rail-
Life claims is false. Torres and Olmeda’s affidavits contain an admission that E.
Cardona, a Rail-Life employee, showed Union Pacific his badges issued by Choctaw
and another company:
It was on that day that Mr. Zumbrennen—[a Union Pacific employee]—demanded Mr. C[a]rdona to present his badge and Mr. C[a]rdona presented the badge Mr. Cardona had with [Choctaw] and JC Construction. Mr. C[a]rdona explained to Mr. Zumbrennen that Mr. Cardona’s badge through Rail-Life was i[n] the process.
After poring over the TCPA record, we conclude that Rail-Life has not met
its prima facie burden for its business-disparagement claim because the evidence
shows that Choctaw’s statement was, in fact, true, negating the “false and
disparaging information” element. See Basic Capital Mgmt., Inc. v. Dow Jones &
Co., Inc., 96 S.W.3d 475, 480 (Tex. App.—Austin 2002, no pet.) (“A statement that
20 is true or substantially true cannot support a claim for . . . business disparagement.”);
see also David Rafes, Inc. v. Huml, No. 01-08-00856-CV, 2009 WL 3491043, at *4
(Tex. App.—Houston [1st Dist.] Oct. 29, 2009, no pet.) (mem. op.) (explaining truth
or substantial truth is defense to falsity element in defamation context). Thus, we
conclude the trial court erred by denying Choctaw’s TCPA motion to dismiss.
Having concluded that Choctaw was justified in communicating with Union
Pacific about the eRailsafe badges for Rail-Life’s tortious-interference claim and
that Rail-Life did not meet its burden of making a prima facie showing for its
business-disparagement claim, we need not address the remainder of the parties’
issues, including Choctaw’s argument that the trial court made erroneous evidentiary
rulings. TEX. R. APP. P. 47.1; see Universal Plant Servs., Inc. v. Dresser-Rand
Group, Inc., 571 S.W.3d 346, 363 n.1 (Tex. App.—Houston [1st Dist.] 2018, no
pet.).
Conclusion
Having determined that the trial court erred by denying Choctaw’s motion to
dismiss Rail-Life’s claims under the TCPA, we reverse the trial court’s order
denying Choctaw’s TCPA motion in favor of Rail-Life. We remand the case to the
trial court with instructions to dismiss Rail-Life’s suit after holding additional
proceedings to award Choctaw its court costs, reasonable attorney’s fees, and other
21 expenses incurred in defending against the action as are equitable and just, and any
other relief available under the TCPA.4
Sarah Beth Landau Justice
Panel consists of Justices Keyes, Lloyd, and Landau.
4 TEX. CIV. PRAC. & REM. CODE § 27.009(a) (authorizing mandatory award of attorney’s fees and court costs for successfully defending TCPA motion); see Bedford v. Spassoff, 520 S.W.3d 901, 906 (Tex. 2017) (per curiam) (reversing judgment as to libel claim and remanding to trial court with instructions to dismiss libel claim and award attorney’s fees under TCPA); Schimmel v. McGregor, 438 S.W.3d 847, 862 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (proper disposition when trial court errs in denying dismissal under TCPA is reversal and remand for Section 27.009(a) award followed by dismissal). 22