Defendants Heidi Jo Mcivor and Mcivor Marketing, LLC (collectively "Mcivor")
under the Texas Citizens Participation Act, filed by Plaintiff Local Marketing, Inc.
("Local"). Mcivor and Local appeared through counsel and presented their
arguments at a hearing before the court on June 5, 2026. Having considered the
parties' briefing and oral argument, the pleadings, and the relevant law, the court
grants Local's motion for the reasons set forth below. FACTUAL AND PROCEDURAL BACKGROUND
ljf2 This is a departing-employee case. Marketing company Local sued former
executives and employees in a Harris County district court, alleging they formed a
competing marketing company using Local's trade secrets and in breach of
employment contracts. Following Local 's removal of the case to the Texas Business
Court, Mcivor countersued for defamation and tortious interference with business
relations based on letters Local sent to its former, actual, or prospective customers
that it had learned were now Defendants' customers. E.g.) Am. Pet. ljf 18 (claiming
Defendants "poach[ed]" Local's customer Audi Charlotte); Mot. Ex. A (letter to
Audi Charlotte); see Resp. Ex. A-4 at 45-46. Local moved to dismiss both claims
under Texas's anti-SLAPP statute, the Texas Citizens Participation Act ("TCPA").
MOTION STANDARD
ljf3 The TCP A provides a three-step process for deciding a motion to dismiss.
Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). First, the movant must
"demonstrate that the 'legal action' is 'based on or is in response to' the [movant's]
exercise of the right of speech, petition, or association." Id. (quoting TEX. CIV. PRAC.
&REM. CODE§§ 27.003(a), 27.00S(b)). If the movant meets this burden, then at the
second step, "the claimant may avoid dismissal by establishing 'by clear and specific
evidence a prima facie case for each essential element of the claim in question.'" Id.
(quoting TEX. CIV. PRAC. & REM. CODE § 27.005(c)). At the third step, a claim
surviving step two will be dismissed if the movant "establishes an affirmative 2 defense or other grounds on which the moving party is entitled to judgment as a
matter of law." Id. (quoting TEX. Crv. PRAC. & REM. CODE§ 27.005(d)).
ANALYSIS
I. The TCPA applies to Mclvor's counterclaims.
9[4 The TCPA applies to the counterclaims. The statute defines a "legal action"
to include a counterclaim, and a TCPA motion to dismiss may be filed against a legal
action that "is based on or is in response to a party's exercise of the ... right to
petition[.]" TEX. CIV. PRAC. & REM. CODE §§ 27.001(6), 27.003(a). The TCPA
defines "exercise of the right to petition" to include "a communication in or
pertaining to ... a judicial proceeding." Id. § 27.001( 4)(A)(i).
9[5 Local's letters were unquestionably TCPA "communications." Id.
§ 27.001(1) (defining communication as the "making or submitting of a statement
or document in any form or medium, including oral, visual, written, audiovisual, or
electronic"). Mclvor's counterclaims are wholly based on and in response to these
letters, which are the "gravamen of the claim[s]." Walgreens v. McKenzie, 713
S.W.3d 394,400 (Tex. 2025) (internal quotations omitted).
9[6 And these communications directly "pertain[ed]" to the Harris County
lawsuit, a judicial proceeding. Applying the statutory definition, Texas courts hold
that statements made expressly and directly about a lawsuit pertain to the suit. See
Hanna v. Williams) 681 S.W.3d 416, 424 (Tex. App.-Austin 2023, pet. denied)
(holding "statements to [plaintiff] about the litigation" pertained to the suit under 3 TCPA); Cardio Grp., LLCv. Kring, No. 05-22-00101-CV, 2022 WL 17817971, at *4
(Tex. App.-Dallas Dec. 20, 2022, no pet.) (mem. op.) (holding letter to claimant's
customers pertained to the underlying lawsuit where it cited the suit's caption and
cause number and falsely described liens against equipment in customers'
possession). Here, the letters attached the temporary restraining order from, cited
the cause number and caption of, and described the ruling in, the Harris County
lawsuit. The letters informed the customers that Mcivor was "specifically
restrained and enjoined, until March 3, 2026, and, potentially, further into the
future, from 'contacting or soliciting LMI's current employees, consultants, or
independent contractors,' as well as soliciting [Local's] customers. This includes
you." Mot. Ex. A. The letters noted that, "[a]lthough [the recipient customer] is not
presently named as a defendant, the Court's [TRO] is binding on persons and entities
who receive actual or constructive notice of the injunction and who act in concert or
participation with enjoined parties, to the extent applicable." Id.
beyond communications "in" a judicial proceeding to those "pertaining to" the
proceeding. TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). Though Local's
statements were not made in the lawsuit, they directly related to and concerned the
suit-so they pertained to the suit as the TCPA requires. See Adams & Reese LLP v.
Emerald Elec. Consultants LLC, No. 14-22-00741-CV, 2024 WL 1404622, at *4
(Tex. App.-Houston [14th Dist.] Apr. 2, 2024, no pet.) ("We construe the phrase 4 'pertaining to' according to its ordinary meaning as relating directly to or concerning
or having to do with."). Indeed, the entirety of Local 's three-page letter pertained to
the lawsuit.
pertaining to the Harris County judicial proceedings. Mclvor does not claim the
commercial-speech exemption excludes its counterclaims from the TCP A's reach,
so the TCP A applies.
II. Mcivor failed to meet its prima facie burden.
petition, and association and a claimant's right to pursue valid legal claims for
injuries the defendant caused." Borgelt v. Austin Firefighters Ass'n, 692 S.W.3d
288,311 (Tex. 2024). At this preliminary stage of the suit, Mclvor need only present
"the minimum quantum of evidence necessary to support a rational inference" that
its factual allegations are true. Id. Evidence is "clear and specific" if it provides
enough detail to show the factual basis for the claim. USA Lending Group, Inc. v.
Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023). Such evidence need not be
conclusive, uncontroverted, or found credible. Id. Mclvor's "rebuttal burden is not
remotely equivalent to requiring early proof that the plaintiffs will ultimately
prevail." Borgelt, 692 S.W.3d at 311.
central facts, raises a rational inference, at this prima facie stage, of the following:
5 Cj[ll Mcivor and Local are competitors. Local sought a customer-solicitation
restraint against Mcivor in the Harris County suit, but the resulting TRO instead
contained employee-solicitation and nondisclosure restraints, among other
restrictions. In the absence of the restraint Local wanted, Local 's former attorney
sought consent from the Defendants' attorneys to "correct" the TRO to add the
customer-solicitation restraint, but they opposed that addition. So Local called
Mclvor's employee to identify its customers and, the day after unsuccessfully
seeking consent to add customer nonsolicitation, wrote those customers the letter
that is the subject ofMclvor's claims. 1 Knowing there was no customer-solicitation
restraint, Local informed these customers that the TRO "specifically restrained and
enjoined" Mcivor from contacting Local' s employees "as well as soliciting [Local' s]
customers. This includes you and your business." Mot. Ex. A at l; D's Resp. Ex. B-
3. 2 The letter also stated that Mcivor was "acting in concert with Non-Mcivor
Defendants ... to circumvent the direct prohibition on competing with L[ ocal] and
soliciting L[ ocal]'s customers." Id. The day after sending the letters, Local filed a
motion asking the trial court to make the customer-nonsolicitation addition, which
The letter states that "[Local] has asked us, as its outside counsel, to reach out to you and bring to your attention" the TRO restraints. Mot. Ex. A. Local does not deny that it acted through its attorney or otherwise claim he was acting outside his authority. 2 While Local lodges various evidentiary objections to Mcivor's evidence, the letters' contents are not in dispute; Local attached a copy of the letter to its motion and its counsel admitted copies were sent to at least three specified companies. 6 it ultimately declined to do, allowing the TRO to expire and denying a temporary
injunction.
A. Damages are an essential element of both counterclaims.
against Local. First, defamation of a private figure requires (1) the publication of a
false statement of fact to a third party, (2) that was defamatory concerning the
plaintiff, (3) made with negligence, and (4) damages. In re Lipsky, 460 S.W.3d 579,
593 (Tex. 2015). "Even though defamation's principal purpose is to provide a
remedy for reputational harm (a noneconomic injury), plaintiffs may nevertheless
recover special damages as well." Innovative Block of S. Tex., Ltd. v. Valley Builders
Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020). "Special damages ... represent
specific economic losses that must be proven." In re Lipsky, 460 S.W.3d at 593. To
survive TCP A dismissal of a defamation claim, the claimant must show "the facts
of when, where, and what was said, the defamatory nature of the statements, and
how they damaged the plaintiff." Id. at 591.
[the claimant] to prove that the tortious conduct at issue-here, defamation-
caused it to suffer economic damages." Landry's, Inc. v. Animal Legal Def Fund,
7 631 S.W.3d 40, 53 (Tex. 2021). 3
B. Mcivor has not met its TCPA burden on damages.
so the court need not reach the remaining elements of the two causes of action.
sufficient to allow a rational inference that some damages naturally flowed from the
defendant's conduct;" a "general averment of loss, like any conclusory opinion, is
not sufficient." USA Lending Group1 Inc., 669 S.W.3d at 202. Mclvor's declaration
that it "was damaged" by the letters is conclusory and therefore insufficient. Id.
declaration to attesting it spent time "explaining the litigation, the actual contents
of the TRO, and history with [Local], with each of the recipients, time that otherwise
could have been devoted to revenue-producing activities." Resp. Ex. B
court at this stage takes as true that Mclvor's owner devoted time to describe the
litigation to three customers instead of conducting other unnamed business
activities. Even so, that fact is no evidence of economic or noneconomic damages.
3 Though the parties' briefing references a claim for "tortious interference with contract," Mcivor's second counterclaim is one for "Tortious Interference with Existing and Prospective Contractual Relations" and the body of the counterclaim pleads only interference with existing or prospective "business relationships" without reference to a contract. Mcivor's Counterclaim at 5- 6. The TCPA record contains no evidence of a contract, either. Regardless, a claim for tortious interference with contract equally requires proof of "actual damage or loss." Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 689 (Tex. 2017). 8
Local's TCPA challenge, Mclvor's declaration is vague and insufficient. A
nonmovant's averment that it "sustained direct pecuniary and economic losses and
costs, lost profits, loss of its reputation, and loss of goodwill ... in excess of three
million dollars" fails to satisfy the TCP A hurdle on damages. USA Lending Group,
Inc., 669 S.W.3d at 202 (internal quotations omitted) (quoting In re Lipsky, 460
S.W.3d at 592). Such a statement is "devoid of any specific facts illustrating how
the defendant's alleged remarks about the plaintiff's activities actually caused such
losses." Id. (internal brackets omitted). Even where the claimant presents evidence
of specific, identifiable customers that cancelled bookings because of "recent
publicity" on the topic in the allegedly defamatory publications, a tortious-
interference claim cannot survive a TCPA challenge absent evidence the customers
"based their decision to cancel on statements in those stories attributed to the
defendants." Landry's, 631 S.W.3d at 54-55.
particular challenged statement by the defendants and [any] particular lost
bookings," see id. at 54, Mclvor's evidence falls far shorter. Mclvor's owner does
not declare the company suffered a drop in revenue as a result of the conversations
with its customers, does not provide facts creating a "rational inference" of lost
profits, and simply does not show that any harm ultimately befell the company
because of the letters. See In re Lipsky, 460 S.W.3d at 592 (disagreeing that 9 declaration raised a rational inference that claimant "lost trade or other dealings"
and requiring "specific facts" illustrating how remarks "actually caused such
losses") (internal quotations omitted). The declaration does not suggest Mclvor lost
any discrete opportunity that would have been a foreseeable consequence of the
letters, as needed for a consequential-damages theory to survive. E.g.1 MSW Corpus
Christi Landfill1 Ltd. v. Gulley-Hurst1 L.L.C., 664 S.W.3d 102, 107 (Tex. 2023)
(holding opportunity-cost damages model from inability to invest in a new loan are
consequential damages that can be recovered only if "the parties contemplated at
the time they made the contract that such damages would be a probable result of the
breach"); Signature Indus. Servs.1 LLCv. Int'lPaper Co., 638 S.W.3d 179, 187 (Tex.
2022) ("Foreseeability is an independent element of any claim for consequential
damages.").
that time on more profitable activities, but Mcivor cites no damages model that
would allow recovery for that lost time. See Perez v. McCreary1 Veselka1 Bragg &
Allen, P.C.1 45 F.4th 816, 825 (5th Cir. 2022) ("we are not aware of any tort that
makes a person liable for wasting another's time").
damaged, and the declaration describes no mental anguish Mclvor's owner suffered.
While bare mention of having suffered these types of noneconomic damages is
insufficient under well-settled precedent, USA Lending Group, Inc., 669 S.W.3d at 10 202, Mclvor does not make even a generalized declaration that it suffered such
harm. Mclvor's own statements instead suggest its efforts paid off in successfully
preserving these business relationships. No damages are reasonably inferred on this
record.
C. Mcivor has not created a rational inference of defamation per se.
9121 Mcivor, however, also pleads defamation per se. "Pleading and proof of
particular damage is not required to prevail" on such a claim, "and thus actual
damage is not an essential element of the claim to which the TCP A's burden of clear
and specific evidence might apply." In re Lipsky, 460 S.W.3d at 596; see Innovative
Block of S. Texas) Ltd. v. Valley Builders Supply) Inc., 603 S.W.3d 409, 423-24 (Tex.
2020) (Unlike certain "special damages that must be specifically pleaded and
proved," "harm to reputation is a noneconomic injury that may be presumed when
the defamation is actionable per se but otherwise requires evidence of actual
harm."). Whether a statement is defamatory per se is first an inquiry for the court.
Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013).
9122 "While a defamatory statement is one that tends to injure a person's
reputation, such a statement is defamatory per se ifit injures a person in her office,
profession, or occupation." Bedford v. Spassoff, 520 S.W.3d 901, 905 (Tex. 2017).
The injury cannot be a generalized character insult. Id. Instead, the "particular
quality disparaged [must be] of such a character that it is peculiarly valuable in the
plaintiff's business or profession." Id. For example, in Lipsky) the plaintiff claimed 11 that "by being falsely branded as a polluter," the accusations "adversely affect[ ed]
the perception of [the plaintiff's] fitness and abilities as a natural gas producer."
460 S.W.3d at 596. But falsely accusing a physician of lacking veracity is "equally
discreditable to all persons" and not peculiar to the medical profession. Bedford,
520 S.W.3d at 905 (citing Hancock, 400 S.W.3d at 67). And "disparaging the
quality or condition of a business's product or service is not, standing alone,
defamation per se." Innovative Block of S. Tex.) Ltd., 603 S.W.3d at 426-27.
9[23 Here, a false statement that Mcivor had been temporarily enjoined from
soliciting Local's customers is not uniquely injurious to the marketing profession,
particularly compared to the undisputed truth-that Mcivor had been enjoined from
soliciting Local's employees and from accessing its customer lists and bank records.
Resp. Ex. A-5. And, while accusing a person of committing a crime is actionable per
se, Dallas Morning News) Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018), the
letters do not accuse Mcivor of a crime or state that Mclvor's conduct prompting the
claimed customer-nonsolicitation restraint was illegal. The letter's objectionable
sentence regarding customer solicitation, whether read in isolation or read in
context, does not satisfy the Texas standard for a statement "so obviously
detrimental to one's good name" that damages need not be proven. See id. at 624.
9[24 "A prima facie case refers to evidence sufficient as a matter oflaw to establish
a given fact if it is not rebutted or contradicted." Landry's) Inc., 631 S.W.3d at 46.
Assuming without deciding that Local's statement (that the TRO restrained 12 customer nonsolicitation) was a verifiably false fact rather than an opinion, the
statement fails to pass the TCP A test as to defamation per se. Even if the evidence
were not rebutted or contradicted, the record reflects no defamation per se as a
matter oflaw.
beyond the presumed nominal amount. See Innovative Block of S. Tex., Ltd., 603
S.W.3d at 424. The court need not reach Local's argument that Mclvor's failure to
plead nominal damages, given no proof of general or special damages, is
independently sufficient to dismiss the defamation-per-se theory.
motion to dismiss and to obtain additional time for that discovery before the hearing.
See TEX. Crv. PRAC. & REM. CODE§§ 27.004(c), 27.006(b). Mcivor opted not to do
so. However, the court notes that the events in this case are ongoing-for example,
when the suit was removed to this court, Local was still in the process of seeking a
hearing on its injunctive relief, and the parties' respective relationships with actual
and prospective customers are developing in real time as this litigation proceeds.
The TCPA creates a strict timeline for hearing and ruling on Local's motion. But
leave of court is not currently required under this case's Scheduling Order to make
pleading amendments before August 20, 2027, based on claims arising from new
harm incurred by Mcivor.
13 9[27 The TCP A standard is not an exacting one, but Mcivor did not meet its burden
to place a quantum of evidence before the court as to damages caused by the alleged
defamation and tortious interference or regarding its theory of defamation per se.
The counterclaims must be dismissed.
III. The court need not reach Local's affirmative defense.
9[28 A TCP A movant seeking to bar a claim based on an affirmative defense must
establish each element of that defense as a matter of law. See Ferchichi v.
Whataburger Rests. LLC, 713 S.W.3d 330, 336 (Tex. 2025) (citing TEX. CIV. PRAG.
&REM. CODE§ 27.00S(d)). Having concluded that the claims fail at the prima-facie
stage, the court need not reach the question of whether Local conclusively proved
its defense of judicial-proceedings immunity.
IV. The court awards the mandatory fee award.
9[29 Because the motion must be granted, an attorneys' fee award is mandatory.
TEX. CIV. PRAG. & REM. CODE § 27.009(a)(l); Ferchichi, 713 S.W.3d at 336. In
support of its fees request, Local's counsel submitted two fee declarations with
redacted billing records. Mcivor does not object to that evidence, contradict the fees
proven, or otherwise dispute that the amount is reasonable or necessary. The court
finds nothing excessive or unfair about Local 's calculation and proof of the fees it
incurred defending against Mclvor's counterclaims. See Sullivan v. Abraham, 488
S.W.3d 294, 299 (Tex. 2016). The court awards the full amount of $18,010.00
sought by Local. 14
award sanctions under section 27.009(a)(2) of the Texas Civil Practices and
Remedies Code.
CONCLUSION AND ORDER
For these reasons, the court GRANTS Local's motion to dismiss Mclvor's
counterclaims for (1) libel per se and statutory libel; and (2) tortious interference
with existing and prospective contractual relationships.
The court ORDERS that Mclvor pay Local $18,010 in attorney's fees.
The court further ORDERS that the TCPA suspension of discovery imposed
by section 27.003(c) of the Texas Civil Practices and Remedies Code is lifted.
Responses to any discovery requests that were pending during the suspension shall
be served within 15 days of this Order.
SO ORDERED.
p Judge of he Texas Business Court, Fourth Division, sitt-ing by assignment in the Eleventh Division
SIGNED ON: June 15, 2026