REVERSE and RENDER in part; AFFIRMED and Opinion Filed April 11, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00478-CV
SHERRY BEARD AND JOSEPH BEARD, Appellants V. MCGREGOR BANCSHARES, INC. AND THE FIRST NATIONAL BANK OF MCGREGOR D/B/A TFNB YOUR BANK FOR LIFE, AND DAVID LITTLEWOOD, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-04466
MEMORANDUM OPINION Before Justices Carlyle, Smith, and Garcia Opinion by Justice Smith This is an appeal from the denial of two TCPA motions to dismiss. The
underlying lawsuit began when appellees McGregor Bancshares, Inc. and The First
National Bank of McGregor d/b/a TFNB Your Bank for Life (TFNB) filed a Rule
202 petition seeking to discover the identity of a person who allegedly sent
defamatory, anonymous FedEx packages to various parties. After McGregor
Bancshares and TFNB conducted discovery, they amended the petition to allege
numerous causes of actions against appellant Joseph Beard (Joe). Appellee David Littlewood, as a third-party plaintiff, filed cross-claims against Sherry Beard, Joe’s
wife.1 The Beards filed separate motions to dismiss under the TCPA. The trial court
overruled the Beards’ objections to appellees’ evidence and denied both motions to
dismiss.
In multiple issues, the Beards argue the trial court erred by overruling their
evidentiary objections and denying their motions to dismiss because the allegations
in their petitions are based on or in response to their exercise of the right of free
speech and right to petition, and appellees failed to provide clear and specific
evidence of a prima facie case for each essential element of their claims. For the
reasons discussed below, we affirm in part, reverse in part, and remand for further
proceedings.
Factual Background
The underlying facts of this lawsuit are well-known to the parties; therefore,
we include only those relevant for disposition of this appeal. See TEX. R. APP. P.
47.1. The following facts are from appellees’ amended petition against Joe and
Littlewood’s cross-claims against Sherry.
TFNB has a long history of serving residents and businesses in McClennan
County. TFNB is one hundred percent owned by McGregor Bancshares, which is a
holding company. All shares of McGregor Bancshares are privately owned.
1 For clarity, the appellees are referred to separately as McGregor Bancshares, TFNB, and Littlewood when necessary. When the Court is referring to all three parties collectively, then it refers to them as appellees. –2– In 2000, Pat Beard, Joe’s father, hired David Littlewood with unanimous
approval of the TFNB board of directors. After eighteen months, Littlewood was
appointed TFNB’s Chief Credit Officer, where he oversaw regulatory compliance.
In 2003, Littlewood was again promoted, with unanimous board approval, to
President and CEO, a position he has held continuously since 2003.
Two of McGregor Bancshares’ key investors are Castle Creek Capital, LLC
and EJF Capital, LLC. In March 2019, Littlewood, as the president and CEO of
TFNB, issued a press release announcing that McGregor Bancshares had completed
a $25 million private placement of its capital stock with certain affiliates of Castle
Creek and EJF. The press release emphasized the importance of Capital Creek and
EJF’s partnership for the growth of TFNB and McGregor Bancshares.
On February 11, 2020, Castle Creek’s legal counsel contacted McGregor
Bancshares’ officers and board members advising them that Castle Creek received
an unsolicited, anonymous FedEx package with documents accusing TFNB and its
leadership (including Littlewood) of engaging in systemic unsafe and unsound
lending practices that jeopardized the financial condition of TFNB. Essentially, the
documents accused TFNB and its leadership of violating numerous banking
regulations and alleged that TFNB was on the verge of collapse.
Castle Creek immediately requested that McGregor Bancshares’ board of
directors form a special committee to investigate the validity of the accusations.
After reviewing the materials in the anonymous FedEx packages, the special
–3– committee determined that (1) there were no underwriting issues associated with any
of the loans it reviewed; (2) TFNB’s underwriting practices were disciplined and
sound; and (3) there was no factual basis supporting any of the anonymous
allegations.
TFNB later discovered that other anonymous FedEx packages with similar
accusatory documents about its underwriting practices were sent to other regulators
and investors, including EJF. These packages were sent on February 3, 2020, and
March 16, 2020.
TFNB believed Joe was the anonymous sender of the packages. Although Joe
had no direct relationship with TFNB, the Beard family’s history with TFNB
transcended decades. Joe’s father, Pat, had active leadership roles in TFNB for over
forty years. Joe’s brother, Mike, followed in Pat’s footsteps.
Unlike his father and brother, Joe was not interested in TFNB and instead
focused his career on commercial real estate in Dallas. However, his interest
changed when Pat died in November 2013. Joe then attempted an unsuccessful
hostile takeover of TFNB, which included trying to remove Mike and Littlewood
from TFNB leadership. Joe’s failure to oust Mike and Littlewood from leadership
led to animosity that, despite subsiding for a few years, reignited and intensified in
2019. The Beards began making various accusations against appellees. These
accusations led to the underlying suits discussed below.
–4– Procedural Background
On March 17, 2020, McGregor Bancshares and TFNB filed a Rule 202
petition seeking to ascertain the identity of the person sending the FedEx packages.
On April 9, 2020, Sherry filed her original counterclaims against TFNB alleging (1)
aiding and abetting, (2) intentional infliction of emotional distress, and (3) piercing
the corporate veil.
On July 15, 2020, Sherry filed her third-party plaintiff’s first amended third-
party petition in which she added Littlewood as a third-party defendant and accused
him of initiating and perpetuating a pattern of ongoing interference, threats, and
harassment. She claimed Littlewood’s harassing behavior began and continued
because the Beards determined that Littlewood was unfit to serve as TFNB’s
president. She alleged, among other things, that Littlewood harassed her family at a
country club and other restaurants, called her late at night, and used physical
intimidation on several occasions in public. Sherry also alleged that Littlewood told
Lee Washington (who subsequently told her) that Littlewood wanted to shoot her in
the back of the head. She brought causes of action for (1) invasion of privacy, (2)
assault (threat of bodily injury), (3) intentional infliction of emotional distress, (4)
stalking, and (5) tortious interference with prospective relations.
On February 11, 2021, McGregor Bancshares and TFNB filed their amended
petition against Joe, and Littlewood filed cross-claims against Sherry for (1)
–5– defamation, (2) business disparagement, and (3) tortious interference with business
relations.
Subsequently, Sherry filed a motion to dismiss all of Littlewood’s claims
under the TCPA. She alleged Littlewood filed his cross-claims in retaliation for her
filing her third-party amended petition and, therefore, Littlewood sought to deter,
impair, and frustrate the exercise of her constitutional rights of free speech,
association, and petition.2 Joe filed a separate TCPA motion to dismiss appellees’
causes of action for (1) defamation, (2) business disparagement, and (3) tortious
interference with business relations. Joe also sought dismissal of TFNB’s causes of
action for tortious interference with a contract and libel or slander of a bank.
Appellees filed numerous objections to the Beards’ evidence in support of the
Beards’ motions to dismiss. The Beards likewise filed objections and motions to
strike appellees’ evidence. The trial court overruled the Beards’ objections. In two
separate orders, the trial court overruled the Beards’ motions to dismiss in their
entirety. This appeal followed.
Timeliness of Joe Beard’s TCPA Motion
We first address whether Joe timely filed his TCPA motion to dismiss. The
parties do not dispute the timeliness of Sherry’s motion.
2 On appeal, Sherry has relied only on her rights to free speech and to petition; therefore, we limit our review to those two constitutional rights. TEX. R. APP. P. 47.1. –6– This lawsuit began on March 17, 2020, when McGregor Bancshares and
TFNB filed a Rule 202 petition. After conducting pre-suit discovery, TFNB and
McGregor Bancshares filed their amended petition on February 11, 2021.
Joe filed his TCPA motion to dismiss on April 12, 2021. TFNB and
McGregor Bancshares argued, in part, that Joe’s motion was untimely because he
did not file it within sixty days after being served with the Rule 202 petition. Joe
responded that a Rule 202 petition does not fall within the TCPA’s definition of
“legal action.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6) (defining “legal
action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counter-
claim or any other judicial pleading or filing that request legal, declaratory, or
equitable relief”).
Our analysis of this issue is guided by the recent Texas Supreme Court case
Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021). In Montelongo, the supreme
court acknowledged that absent an extension by agreement or good cause, the party
seeking dismissal under the TCPA must file a motion within sixty days after the
party is served with the legal action. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(b). The court then explained when an amended petition triggers a new
sixty-day period for filing a motion to dismiss:
[T]o the extent an amended or supplemental pleading either (1) adds a new party or parties, (2) alleges new essential facts to support previously asserted claims, or (3) asserts new legal claims or theories involving different elements than the claims or theories previously
–7– asserted, the new pleading asserts a new legal action and triggers a new sixty-day period as to those new parties, facts, or claims.
Montelongo, 622 S.W.3d at 293–94; see also Soo v. Pletta, No. 05-20-00876-CV,
2022 WL 131045, at *6 (Tex. App.—Dallas Jan. 14, 2022, no pet.) (mem. op.)
(applying Montelongo and concluding amended pleading triggered a new sixty-day
period to file TCPA motion because amended pleading added a new claimant and
claim).
A comparison of the Rule 202 petition and the amended petition filed against
Joe indicates the following:
TFNB and McGregor Bancshares filed the Rule 202 petition “to investigate potential claims and suits” against Joe and his “suspected involvement” in sending anonymous packages to third parties with the intention of maliciously harming TFNB’s business operations and disparaging TFNB’s reputation through false and derogatory statements concerning its financial condition and underwriting practices.
The Rule 202 petition identified one anonymous FedEx package believed to have been sent by Joe on or about February 4, 2020.
The Rule 202 petition stated pre-suit discovery would likely “give rise to a host of claims” including business disparagement, tortious interference with existing contract, tortious interference with prospective business relations, and violations of the Texas Finance Code (but did not allege a specific claim under a specific section).
The amended petition named Joe as a defendant, included additional facts about three other anonymous FedEx packages, “confirmed that the FedEx packages were sent by Joe Beard,” and alleged violations of Texas Finance Code § 59.002 (Slander or Libel of a Bank).
The amended petition added a new party, alleged new essential facts to support
previously asserted claims, and asserted a new legal claim under the finance code.
–8– Following Montelongo, we conclude the amended pleading asserted new legal
claims triggering a new sixty-day deadline. Because Joe filed his motion to dismiss
within sixty days of TFNB and McGregor Bancshares filing their amended petition,
his motion to dismiss was timely. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(b); Montelongo, 622 S.W.3d at 293–94. As such, the trial court could not
have denied Joe’s motion to dismiss on this basis. We now turn to the burden-
shifting analysis of the TCPA.
TCPA Framework and Standard of Review
Chapter 27 of the Texas Civil Practice and Remedies Code is a legislative
enactment to curb “strategic lawsuits against public participation.” Thomas v. Wm.
Charles Bundren & Assocs. Law Grp. PLLC, No. 05-20-00632-CV, 2021 WL
3159795, at *3 (Tex. App.—Dallas July 26, 2021, no pet.) (mem. op.). The primary
feature of the TCPA is a burden-shifting dismissal framework that allows defendants
at an early stage to seek dismissal of a meritless suit in response to a defendant’s
exercise of a protected right. Id. The moving party bears the initial burden of
demonstrating “that the legal action is based on or is in response to the party’s
exercise of the right of free speech, the right to petition, or the right of association.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). If the movant carries that burden,
the nonmovant seeking to avoid dismissal must establish “by clear and specific
evidence a prima facie case for each essential element of the claim in question.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
–9– We review de novo the trial court’s ruling on a TCPA motion, including the
trial court’s determinations as to whether the parties met or failed to meet their
respective burdens under section 27.005. See Dallas Morning News, Inc. v. Hall,
579 S.W.3d 370, 377 (Tex. 2019); Thomas, 2021 WL 3159795, at *3. In conducting
our review, we consider the pleadings, evidence a court could consider under Texas
Rule of Civil Procedure 166a, and supporting and opposing affidavits stating the
facts on which the liability or defense is based. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.006(a). With this framework in mind, we consider Sherry and Joe’s
motions to dismiss.
Sherry’s Motion to Dismiss
Sherry’s TCPA motion to dismiss alleged that Littlewood’s cross-claims for
defamation, business disparagement, and tortious interference with business
relations were retaliatory and sought to deter, impair, and frustrate the exercise of
her constitutional rights of free speech and to petition. In her brief, Sherry argues
the TCPA applies to Littlewood’s defamation cross-claim. She does not address its
application to his business disparagement or tortious interference with business
relations cross-claims; therefore, we do not address them. See TEX. R. APP. P. 47.1.
Exercise of the Right of Free Speech
For a movant to trigger the TCPA’s dismissal framework, there must first be
a “communication” as defined by section 27.001(1). See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(1). Neither party challenges whether the statements at issue
–10– are “communications.” Because the lawsuit involves claims predicated on more than
one communication, we must analyze each statement in determining whether Sherry
satisfied her burden that the communications were made while exercising her right
of free speech. See Thomas, 2021 WL 3159795, at *5. The “exercise of the right of
free speech” means “a communication made in connection with a matter of public
concern.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3).
Sherry relies on two statements in Littlewood’s defamation cross-claim that
she alleges directly relate to, or are in response to, her exercise of the right of free
speech. First, Littlewood alleged that Sherry posted the following statement on
Facebook and sent it to hundreds of her Facebook contacts on September 25, 2019:
Hi, I am sending this message to all my Waco friends. David Littlewood employed Lee Washington to conduct a smear campaign in order to slander Joe Beard[’]s character. This is nothing more than slander and complete lies. Lee Washington admitted that David Littlewood is behind this malicious act.
Littlewood also asserted Sherry made defamatory statements on Facebook and in the
Waco Tribune:
Sherry Beard began accusing (or at the very least suggesting) [Littlewood] of being involved in the execution style killing of reality TV star, Joanna Gaines[’] Boer goats back in June of 2016. Sherry Beard posted a $50,000 reward on Facebook and in the Waco Tribune for anyone who could provide evidence leading to the arrest and conviction of the persons responsible.
Sherry argues these statements were communications “made in connection with a
matter of public concern.”
–11– We begin by recognizing that the legislature amended and narrowed the scope
of “matter of public concern” in 2019. See Vaughn-Riley v. Patterson, No. 05-20-
00236-CV, 2020 WL 7053651, at *3 (Tex. App.—Dallas Dec. 2, 2020, no pet.)
(mem. op.) (recognizing legislature’s intent to narrow scope of “matter of public
concern”). To the extent Sherry argues that “communications” need only have a
“tangential relationship” to the public concern that it implicates, and courts have
given “considerable breadth” to the term “public concern,” we disagree in light of
the amended definition and, therefore, her citation to pre-amendment case law is not
instructive to our analysis.3 We consider each statement under the current definition
of “matter of public concern.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(7)(A)–(C). A “matter of public concern” means “a statement or activity
regarding: (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.
Sherry posted the first Facebook statement after she allegedly heard rumors
that Littlewood was telling people that Joe did not believe in God. She contends that
3 The prior definition of “matter of public concern” included issues related to health and safety; environmental, economic, or community well-being; or a good, product, or service in the marketplace. See Jackson v. Kell Auto Sales, Inc., No. 02-21-00106-CV, 2021 WL 5367846, at *4 (Tex. App.—Fort Worth Nov. 18, 2021, no pet.) (mem. op.) (citing Citizens Participation Act, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7))).
–12– a “prominent local businessman” conducting a “smear campaign” attacking another
local businessman certainly has a “tangential relationship” to interest in the
community. We disagree.
The record is devoid of evidence that the dispute had any relevance to the
broader community or that anyone in the community cared about Joe’s religious
beliefs or any “smear campaign.” Sherry’s speech had no connection to McGregor
Bancshares, TFNB, the banking industry, or the broader community. Rather, her
Facebook statements were personal attacks on Littlewood’s character stemming
from a private dispute affecting the fortunes of only the parties involved—Sherry,
Joe, and Littlewood. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
S.W.3d 127, 136 (Tex. 2019) (to be a matter of public concern, a claim must have
public relevance beyond the interests of the parties). Private disputes, whether
sounding in contract or in tort, that merely affect the fortunes of the litigants are not
matters of public concern. Morris v. Daniel, 615 S.W.3d 571, 576 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). As such, Sherry’s Facebook statement about a
“smear campaign” was not made in connection with a matter of public concern.
Thus, Sherry failed to carry her initial burden of demonstrating that her statement
related to a matter of public concern thereby depriving her of the exercise of her
right of free speech as defined by the TCPA. To the extent the trial court denied
Sherry’s motion to dismiss based on this statement, the trial court did not err.
–13– Next, Sherry claims the “killing of reality TV star, Joanna Gaines’ Boer goats”
is per se subject to the TCPA because a “matter of public concern” includes a person
who “has drawn substantial public attention due to . . . celebrity.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.001(7)(A). She also contends criminal acts are
“matters of public concern.”
TCPA case law is clear that criminal acts are matters of public concern. See,
e.g., Miller v. Schupp, No. 02-21-00107-CV, 2022 WL 60606, at *2 (Tex. App.—
Fort Worth Jan. 6, 2022, no pet.) (mem. op.) (statements regarding assaults were
matters of public concern); CBS Stations Grp. of Tex., LLC v. Burns, No. 05-21-
00042-CV, 2021 WL 4398031, at *3 (Tex. App.—Dallas Sept. 27, 2021, no pet.)
(mem. op.) (news broadcast involving robbery, high-speed chase, and arrest of
suspect were matters of public concern); Duncan v. Acius Grp., LP, No. 05-18-
01432, 2019 WL 4392507, at *4 (Tex. App.—Dallas Sept. 13, 2019, no pet.) (mem.
op.) (accusing someone of abusing/killing animals was matter of public concern).
Killing animals is a criminal act. See TEX. PENAL CODE ANN. § 42.092 (cruelty to
non-livestock animals).
Littlewood’s defamation claim, in part, relies on Sherry’s Facebook post
about the killing of goats. To the extent Littlewood’s defamation claim is predicated
on this statement, it is a “matter of public concern,” and therefore based on or in
response to Sherry’s exercise of her right of free speech. See Duncan, 2019 WL
4392507, at *4 (accusing someone of abusing/killing animals is matter of public
–14– concern implicating the TCPA). Having reached this conclusion, we need not
address Sherry’s additional argument that her statement was a matter of public
concern because it involved a “celebrity.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(7)(A); see also TEX. R. APP. P. 47.1.
Because Sherry satisfied her initial burden, we now move to step two of the
burden-shifting analysis: whether Littlewood established by clear and specific
evidence a prima facie case for each essential element of his defamation claim. TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(c). The elements of a defamation action
include (1) publication of a false statement of fact to a third party, (2) that was
defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4)
caused damages. See In re Lipsky, 460 S.W.3d 579, 594 (Tex. 2015) (orig.
proceeding).
For a statement to be actionable as defamation, it must refer to an ascertainable
person. Main v. Royall, 348 S.W.3d 381, 394 (Tex. App.—Dallas 2011, no pet.).
The statement must “point to the plaintiff and no one else.” Id. (quoting Newspapers,
Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960)). A statement does not need to
refer to the plaintiff by name, however, if people who know and are acquainted with
the plaintiff reasonably understand from reading the statement that it referred to the
plaintiff. Id. Further, to qualify as defamatory, a statement should be derogatory,
degrading, somewhat shocking, and contain elements of disgrace. Better Bus.
–15– Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356
(Tex. App.—Houston [1st Dist.] 2013, pet. denied).
The Facebook post in question stated the following:
I am offering a $50,000 cash reward to anyone who can provide information that leads to the arrest and conviction of the person or persons who were responsible for the execution style killing of the 2 Boer goats at the Magnolia Market at the Silos on the night of June 17- 18, 2016.
These goats were shot multiple times sometime between 8:00 pm Friday, June 17th and 7:30 am Saturday, June 18th, 2016.
The same post appeared in the Waco Tribune but added, “Contact: Sherry Beard via
Facebook Messenger.”
Littlewood failed to provide clear and specific evidence that the publications
referred specifically to him. In reality, they do not refer to anyone. Moreover, he
failed to provide clear and specific evidence establishing that the statements were
derogatory, degrading, somewhat shocking, and contain elements of disgrace. See
id. While someone might find statements discussing the execution-style killing of
goats shocking, we cannot reach that conclusion under these facts, particularly when
the statements were not linked to any specific person. Further, to the extent
Littlewood contends the statements were defamatory “by gist,” we likewise reject
his argument. See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 628 (Tex.
2018) (discussing defamation “by gist”).
Littlewood failed to establish by clear and specific evidence the second
element of a defamation claim—a defamatory statement concerning him—and –16– therefore, failed to establish a prima facie case of defamation based on Sherry’s
Facebook post and Waco Tribune newspaper notice. To the extent the trial court
denied Sherry’s motion to dismiss Littlewood’s defamation cross-claim based on
these statements, the trial court erred.
Right to Petition
We now consider whether Littlewood’s defamation cross-claim is based on or
is in response to, Sherry’s exercise of her right to petition. In her motion to dismiss,
Sherry argued the following:
Littlewood unquestionably brings forth claims that invoke the application of the TCPA, in citing Sherry Beard’s proper and valid Counter-Claims as evidence of his own retaliatory Claims and damages. By tethering Sherry Beard’s right to petition in this proceeding to their own claims by way of the complained communications in the Plaintiffs’ own Petition, Plaintiffs have directly invoked the TCPA.
Sherry asserted the following statements in Littlewood’s cross-claim were
“tethered” to her own claims:
Sherry Beard is now accusing TFNB and Littlewood of systemically harassing, threatening, and stalking her; initiating a campaign of spying, physical intimidation, and non-stop harassment and terror; threatening her with imminent bodily injury; physically assaulting her; calling her in the middle of the night; orchestrating her termination (actually resignation) of her unpaid volunteer position with the McLennan County Sheriff’s Office; and even claiming that Lee Washington told her that Littlewood wanted to shoot her in the back of the head (emphasis added).4
4 Sherry and Littlewood both focus on this statement.
–17– Littlewood further stated that “[t]his is the first time Sherry Beard has ever made any
such accusations – as insane and patently false as they are.” These accusations were
part of Sherry’s third-party plaintiff’s first amended third-party petition filed on July
15, 2020.
The “exercise of the right to petition” means “a communication pertaining to
a judicial proceeding.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(1).
A “judicial proceeding” is any proceeding initiated to procure an order or decree,
whether in law or in equity. See Levatino v. Apple Tree Cafe Touring, Inc., 486
S.W.3d 724, 729 (Tex. App.—Dallas 2016, pet. denied). There is no “matter of
public concern” requirement in the statutory definition of the right to petition. See
Watson v. Hardman, 497 S.W.3d 601, 606 (Tex. App.—Dallas 2016, no pet.).
We agree Littlewood’s defamation cross-claim was based on or in response
to Sherry’s right to petition. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b)(1)(B). Littlewood’s defamation cross-claim directly responded to and
was based on Sherry’s claims in her first amended third-party petition. He
specifically stated she was “now accusing” him of a laundry list of nefarious
activities and noted it was the “first time” she had made the allegations. Thus, to the
extent Littlewood contends that Sherry’s statement that Littlewood wanted Sherry
“shot in the back of head” did not relate to any “judicial proceeding” or other
“proceeding,” he is incorrect.
–18– Littlewood cites to Dyer v. Medoc Health Services, LLC, 573 S.W.3d 418,
429–30 (Tex. App.—Dallas 2019, pet. denied) to support his argument; however,
his reliance is misplaced. In that case, we concluded the appellants produced no
evidence of a pending judicial proceeding at the time the statements (text messages)
were made. Id. at 429. In contrast to Dyer, there is no question a judicial proceeding
was pending here, as the very statement at issue was contained in Sherry’s first
amended third-party petition. Littlewood’s subsequent defamation cross-claim, by
the language of his own pleading, was in part, in response to her statement made in
a judicial proceeding. See Hersch v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)
(plaintiff’s pleadings are the “best and all-sufficient evidence of the nature of an
action and “[w]hen it is clear from the plaintiff’s pleadings that the action is covered
by the Act, the defendant need show no more”). We conclude Sherry met her initial
burden of demonstrating that Littlewood’s shoot-in-the-head statement was based
on or in response to her statement in a judicial proceeding and, thus, her right to
petition as defined by the statute. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b)(1)(B).
Because Sherry established her burden under the first step of the TCPA
analysis, we would typically move to step two: whether Littlewood established by
clear and specific evidence a prima facie case for each essential element of his
defamation cross-claim. Id. § 27.005(c). However, Sherry has not challenged any
element of Littlewood’s shot-in-the-head defamation cross-claim on appeal.
–19– Instead, she raises only one argument—his claim is barred by the judicial
proceedings privilege. See Runge v. Franklin, 72 Tex. 585, 10 S.W. 721, 724 (1889)
(“[F]or any defamatory matter in a pleading in a court of civil jurisdiction no action
for libel may be maintained” and “proceedings in civil courts are absolutely
privileged” as “[c]itizens ought to have the unqualified right to appeal to the civil
courts for redress, without the fear of being called to answer in damages for libel.”).
Like other affirmative defenses, parties are generally required to plead the
judicial-proceedings privilege because it is a defense meant to avoid or affirmatively
defend against certain claims, including defamation. See TEX. R. CIV. P. 94; see also
Marble Ridge Capital LP v. Neiman Marcus Grp., 611 S.W.3d 113, 122 (Tex.
App.—Dallas 2020, pet. dism’d) (describing judicial-proceedings privilege as an
affirmative defense); Watson v. Hardman, 497 S.W.3d 601, 608 (Tex. App.—Dallas
2016, no pet.) (same). An affirmative defense must be pleaded, or it is waived. See
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992). The requirement is not
absolute, however, and in some cases, no waiver has been found when a defense is
apparent on the face of the claimant’s pleading. Id. (parental immunity not waived).
This Court has likewise assumed, without deciding, that a trial court could have
granted a TCPA motion based on the judicial-proceedings privilege despite the
claimant never pleading the defense but instead only raising it in its TCPA motion.
See Marble Ridge Capital LP, 611 S.W.3d at 130.
–20– Under either scenario, Sherry’s argument fails. She did not plead the
affirmative defense in the trial court, the defense is not apparent on the face of her
pleading, and she did not raise the privilege in her motion to dismiss. Accordingly,
Sherry failed to preserve the only argument she raises on appeal challenging the trial
court’s denial of her motion to dismiss. To the extent the trial court denied Sherry’s
motion to dismiss Littlewood’s defamation cross-claim based on the shoot-in-the-
head statement, the trial court did not err.
“When a legal action is in response to actions both protected and unprotected
under the TCPA, the entire suit is not subject to dismissal; only that part relating or
responding to the protected action is.” W. Mktg., Inc. v. AEG Petroleum, LLC, 616
S.W.3d 903, 911 (Tex. App.—Amarillo 2021), modified on reh’g on other grounds,
621 S.W.3d 88 (Tex. App.—Amarillo Mar. 18, 2021, pet. denied). In summary, the
trial court erred by denying Sherry’s motion to dismiss as to Littlewood’s defamation
suit to the extent it is based on Sherry’s statements on Facebook and the Waco
Tribune regarding the killing of goats. In all other respects, we affirm the trial
court’s order denying Sherry’s motion to dismiss. Littlewood’s defamation suit may
proceed within this limited scope.
Joe’s Motion to Dismiss
Joe’s TCPA motion to dismiss alleged that appellees’ numerous causes of
actions were in retaliation for alleged communications he made to federal regulators,
investors, and customers regarding potential, previous, and ongoing investigations
–21– into TFNB’s business practices. He alleged the claims were based on, related to,
and were in direct response to his constitutional rights to petition and to exercise free
speech.5
Joe challenged the following communications in appellees’ amended petition
claiming that he anonymously sent his opinions alleging that appellees were:
(a) Extending credit to unqualified and inexperienced borrowers to fund ill-conceived projects;
(b) Failing to classify the credit and extending add-on loans to continue to pay fees and interest to the bank;
(c) Extending additional credit in the form of subordinate liens for a credit line or a property improvement where a portion of the funds are used for paying fees, interest, taxes, operating/living expenses in order to avoid any kind of classification of the credit;
(d) Having no construction loan management or oversight; and
(e) Having improper relationships with an appraisal company to justify loan values and extensions of credit.
Appellees’ first amended petition further alleged that Joe opined:
(a) TFNB has no underwriting;
(b) TFNB lacks industry knowledge;
(c) TFNB does not investigate their borrowers;
(d) TFNB has no institutional control;
(e) Littlewood ignores the bank’s underwriters in charge of loans;
(f) Littlewood regularly yells and screams at his underwriters;
(g) Littlewood fosters a culture of compliance at his will; and
5 He included the right of association in his motion to dismiss but has not raised that argument on appeal. TEX. R. APP. P. 47.1. –22– (h) Problem loans are systematically buried through additional funding in violation of sound banking practices and TFNB/Littlewood fails to address these problems.
Right to Free Speech
Joe asserts his alleged communications relate to a matter of public concern
because they involve banking business practices and the risk those practices pose to
the public and interested at-risk parties. He contends these statements relate to
“actual concerning, ongoing practices within the community banking service within
the Waco community’s economic forum, which is a public concern.” Joe further
claims he and the professional community “share a common interest in ethical, fair,
legal, and safe business/financial practices.”
Appellees respond Joe’s accusations have nothing to do with the public’s
well-being. We agree.
Instead, Joe’s alleged statements amount to accusations regarding a bank’s
lending practices, its internal practices, and its poor management by Littlewood. At
most, they potentially affect TFNB’s investors, customers, and vendors. Such
private disputes, whether sounding in contract or in tort, that merely affect the
fortunes of the litigants involved are not matters of public concern. See Creative Oil
& Gas, LLC, 591 S.W.3d at 136 (to be a matter of public concern, a claim must have
public relevance beyond the interests of the parties); Morris, 615 S.W.3d at 576.
Such is particularly the case under these facts when Joe has no interest in TFNB.
Any potential effect of TFNB’s lending practices on its private customers, investors,
–23– and vendors is none of Joe’s business despite “truly car[ing] about the welfare of the
community TFNB serves.”
To the extent Joe argues that “a major bank in the area being investigated by
federal regulators and whose investors are requesting a special committee to
investigate” is a matter of public concern, we disagree. The possibility that a
communication could result in a matter of public concern is beyond the reach of the
TCPA. See, e.g., Teachers Fed. Credit Union v. Esquivel, 621 S.W.3d 786, 799
(Tex. App.—El Paso 26, 2021, no pet.); see also Erdner v. Highland Park
Emergency Ctr., LLC, 580 S.W.3d 269, 276 (Tex. App.—Dallas 2019, pet. denied).
Joe failed to carry his initial burden of demonstrating that his statements
related to a matter of public concern. The trial court properly denied Joe’s TCPA
motion on this basis.
Joe also argues that all of appellees’ claims relate to or are in response to his
right to petition. Appellees respond that Joe cannot establish that his statements
were made “in connection with” a legislative, executive, judicial, or other
governmental proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(B).
However, the “connection with” language appears in section 27.001(4)(B). Section
27.001(4)(C), on which Joe relies, only requires “a communication that is reasonably
likely to encourage consideration or review of an issue by a legislative, executive,
–24– judicial, or other governmental body or in another governmental or official
proceeding.” Id. § 27.001(4)(C).
Here, shortly after learning that anonymous FedEx packages were delivered
to TFNB investors, TFNB advised its primary regulator (the Office of Comptroller
of the Currency or the OCC) of the allegations, who in turn suggested that the OCC
had received a similar anonymous package. According to both Littlewood and Mike
Beard, “This prompted the OCC, along with fraud examiners from the FDIC, to
immediately start investigating the very same lending relationships that were the
subject of Joe’s ‘anonymous’ FedEx Packages.” These communications were
“reasonably likely to encourage consideration or review by a . . . governmental
body,” and did in fact lead to such a review. Accordingly, Joe met his initial burden
of demonstrating that appellees’ claims were based on or in response to his right to
petition as defined by the statute. See id. §§ 27.001(4)(C), 27.005(b)(1)(B).
Because Joe established his initial burden under the first step of the TCPA
analysis, we now move to step two: whether appellees established by clear and
specific evidence a prima facie case for each essential element of their multiple
causes of action. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
As a refresher, McGregor Bancshares, TFNB, and Littlewood sued Joe for
defamation, business disparagement, and tortious interference with business
relations. TFNB also sued Joe for libel or slander of a bank under Texas Finance
Code section 59.002 and for tortious interference with contract.
–25– We begin by addressing whether section 59.002 of the finance code provides
a private cause of action for libel or slander of a bank. Section 59.002 of the finance
code states:
(a) A person commits an offense if the person:
(1) knowingly makes, circulates, or transmits to another person an untrue statement that is derogatory to the financial condition of a bank located in this state; or
(2) with the intent to injure a bank located in this state, counsels, aids, procures, or induces another person to knowingly make, circulate, or transmit to another person an untrue statement that is derogatory to the financial condition of any bank located in this state.
(b) An offense under this section is a state jail felony.
TEX. FIN. CODE ANN. § 59.002. Joe argues Texas does not recognize a private cause
of action for libel or slander of a bank, which is a criminal statute providing only
criminal penalties. TFNB argues that an intertextual review of the finance code
establishes that section 59.002 recognizes a private cause of action.
When a private cause of action is alleged to derive from a statutory provision,
our duty is to ascertain the drafters’ intent. Tex. Med. Res., LLP v. Molina
Healthcare of Tex., Inc., 620 S.W.3d 458, 463 (Tex. App.—Dallas 2021, pet. filed).
In such a case, the statute itself serves as the basis for the analysis. See Cernosek
Enter., Inc. v. City of Mont Belvieu, 338 S.W.3d 655, 663 (Tex. App.—Houston [1st
Dist.] 2011, no pet.). Although in some cases it may be desirable to imply a private
right of action to provide remedies thought to effectuate the purpose of the statute,
–26– ultimately, we must determine whether the drafters intended to create such a private
remedy. See Molina Healthcare of Tex., 620 S.W.3d at 464. We generally will not
imply that a statutory provision gives rise to a private cause of action unless the
intent is clear from the language. Brown v. De La Cruz, 156 S.W.3d 560, 563 (Tex.
2004).
The finance code contains four statutes in which a violation is designated as a
state jail felony for libel or slander of various banking institutions: § 59.002
(“Slander or Libel of Bank”), § 89.101 (“Criminal Slander of a Savings and Loan
Association”), § 119.202 (“Criminal Slander or Libel of a Savings Bank”), and §
199.001 (“Slander or Libel of State Trust Company”). TFNB argues that by
excluding the term “criminal” from section 59.002’s title, the legislature intended to
permit parties to bring civil actions for libel or slander of a bank. We disagree.
The Code Construction Act provides that the heading of a title, subtitle,
chapter, subchapter, or section does not limit or expand the meaning of a statute.
TEX. GOV’T CODE ANN. § 311.024. Consequently, the title does not control the
content of the statute or dictate our interpretation of it. See In re Guardianship of
Laroe, No. 05-15-01006-CV, 2017 WL 511156, at *7 (Tex. App.—Dallas Feb. 8,
2017, pet. denied) (mem. op.). We consider the language of the statute itself. Id.
Section 59.002(b) provides a criminal penalty for violating the statute—a state
jail penalty. See TEX. FIN. CODE ANN. § 59.002(b). As such, the statutory language
is clear that the statute is criminal in nature, and we will not imply a private cause of
–27– action.6 It is not for intermediate appellate courts to create new causes of action.
Jackson Walker, LLP v. Kinsel, 518 S.W.3d 1, 10 (Tex. App.—Amarillo 2015),
aff’d, 526 S.W.3d 411 (Tex. 2017). Creating a new cause of action is tantamount to
creating a new law and doing so lies within the province of the Texas Supreme Court
or the Texas Legislature. Id.
Moreover, the Texas Supreme Court “treads cautiously when deciding
whether to recognize a new tort.” Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.
1998). It has expressed hesitation in creating a tort in an “already crowded judicial
system” and is “especially averse to creating a tort that would only lead to
duplicative litigation, encouraging inefficient relitigation of issues better handled
within the context of the core cause of action.” Id. Such is the case here. TFNB
sued Joe for business disparagement, and it has provided no compelling reason for
recognizing a new cause of action under the finance code. Rather, TFNB’s claims
would create duplicative litigation and should instead be handled within its core
cause of action, which is business disparagement. See Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (explaining essential elements
of business disparagement as “(1) the defendant published false and disparaging
information about it, (2) with malice, (3) without privilege, (4) that resulted in
6 Both parties accuse the other of not citing to any case law supporting their position; however, none exists. In fact, there are no cases that analyze or even cite to any of these finance code provisions. –28– special damages to the plaintiff). The trial court erred by failing to grant Joe’s
motion to dismiss as to TFNB’s finance code section 59.002 cause of action.
As to appellees’ remaining causes of action, Joe argues they all fail because
there is no properly authenticated evidence identifying him as the person who sent
the FedEx packages. To the extent appellees relied on unauthenticated evidence to
establish his identify, Joe asserts the trial court abused its discretion by overruling
his objections and should have granted his motion to dismiss because appellees
failed to provide clear and specific evidence of their prima facie case.
Joe has limited his argument on appeal to appellees’ failure to identify him as
the sender of the FedEx packages. This is his lynchpin. Whether appellees met their
burden to establish a prima facie case as to the other elements of their various causes
of action is not before us, and we do not address them. See Baker v. Orange Panda,
LLC, No. 04-19-00846-CV, 2020 WL 6293150, at *4 (Tex. App.—San Antonio Oct.
28, 2020, no pet.) (mem. op.); TEX. R. APP. P. 47.1.
Joe first argues that the trial court abused its discretion by considering some
of appellees’ evidence obtained during pre-suit discovery. We review the trial
court’s decision to admit or exclude evidence for an abuse of discretion. HDG, Ltd.
v. Blaschke, No. 14-18-01017-CV, 2020 WL 1809140, at *5 (Tex. App.—Houston
[14th Dist.] Apr. 9, 2020, no pet.) (mem. op.); see also Gen. Tire, Inc. v. Kepple, 970
S.W.2d 520, 526 (Tex. 1998). A trial court abuses its discretion if it acts arbitrarily
and without reference to any guiding rules or principles. Garcia v. Martinez, 988
–29– S.W.2d 219, 222 (Tex. 1999). We must uphold a trial court’s evidentiary ruling if
there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998).
After McGregor Bancshares and TFNB filed their Rule 202 petition, the trial
court granted pre-suit discovery. McGregor Bancshares and TFNB served
depositions on written questions (DWQs) to FedEx. Joe objected to the DWQs on
numerous grounds including that the notice required FedEx to respond within seven
days of service, allowed FedEx to send answers by mail or email in contravention of
rule 200, and was not served on all witnesses and parties.
After FedEx responded to the DWQs, the Beards filed a motion to suppress
the FedEx documents lodging many of the same objections. The court held a hearing
on the motion, and the Beards argued that none of the rule 203.2 procedures for
DWQs were followed because none of the deponents answered questions before a
stenographer. Joe argued FedEx answered the questions in signed affidavits, and an
affidavit is not sworn deposition testimony.
The trial court expressed reluctance to suppress the evidence “at this stage of
the game because this case just started earlier this year . . . In my mind at this point
everything is discovery . . . We are just not at the stage where we are basically
excluding or suppressing any evidence at this point.” The court also indicated
skepticism to the Beards’ argument that the affidavits should be suppressed because
they were not transcribed depositions in strict compliance with rule 203.2. While
–30– the court recognized McGregor Bancshares and TFNB might not be able to use
FedEx’s responses to authenticate the documents at trial because they were not
depositions, the court noted the responses could be used for summary judgment. The
court overruled the Beards’ motion to suppress. The Beards challenge this ruling,
along with other rule 200 objections.
First, to the extent the Beards challenge the FedEx discovery because they
allege it was not properly served, we disagree. Rule 200.1 provides that the “notice
of intent to take the deposition must be served on the witnesses and all parties at
least twenty days before the deposition is taken.” TEX. R. CIV. P. 200.1. Rule
200.3(b) provides that “any party may object to the direct questions and serve cross-
questions on all other parties.” TEX. R. CIV. P. 200.3(b). Although McGregor
Bancshares and TFNB may not have strictly complied with the rules of civil
procedure for DWQs, the trial court did not abuse its discretion by overruling the
Beards’ objection and denying their motion to suppress because the Beards were not
parties to the litigation at the time McGregor Bancshares and TFNB served those
discovery requests on FedEx.7 In reaching this conclusion, we acknowledge that
Sherry had sued Littlewood at that point in time; however, her claims were unrelated
to McGregor Bancshares and TFNB’s suspicions about Joe’s activities and therefore
7 The Beards did, however, receive notice of the intent to take the depositions as acknowledged in their objections to the subpoena for DWQs. –31– did not make her a party entitled to service of the DWQs related to the Rule 202
petition.
The Beards’ remaining arguments relate to the authentication of FedEx’s
responses, which appellees relied on to identify Joe as the anonymous sender of the
packages. The Beards argue the trial court abused its discretion by overruling their
objections and denying the motion to suppress because FedEx’s responses were
affidavits and, therefore, did not follow the rules for DWQs. McGregor Bancshares
and TFNB argue that “applied here, it is a distinction without a difference,” and
regardless, the evidence was authenticated.
First, the parties have not cited to, and we have not found, any case in which
a motion to suppress has been granted or denied in the context of a Rule 202 petition
for pre-suit discovery. The case law discussing rule 203.5 is scant and not instructive
on the issue here. See TEX. R. CIV. P. 203.5 (party may object to any errors or
irregularities in manner in which testimony is transcribed, signed, delivered, or
otherwise dealt with by deposition officer). The general purpose of a Rule 202
petition is to investigate potential claims. The trial court expressed its concern that
the case was at a very early stage of the litigation, and the court did not want to
exclude the evidence at this juncture. We cannot say this was not a legitimate basis
for the trial court’s ruling, particularly considering the dearth of relevant case law.
Accordingly, the trial court did not abuse its discretion by denying the Beards’
motion to suppress. Moreover, as further explained below, despite Joe’s objections
–32– to the contrary, appellees authenticated the necessary evidence supporting their
TCPA response.
Both sides argue extensively regarding whether appellees properly
authenticated several exhibits identifying Joe as the sender of the FedEx packages.
These include Exhibits 48, 50, and 51. We begin with Exhibits 50 and 51, which
were purported to be two pictures of Joe taken at a Dallas FedEx location on Oak
Lawn.
Evidence, like a photograph, may be authenticated in numerous ways,
including by direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence, or by circumstantial evidence. See,
e.g., TEX. R. EVID. 901(b)(1), (3)–(4); see also Gadekar v. Zankar, No. 12-16-00209-
CV, 2018 WL 2440393, at *5 (Tex. App.—Tyler May 31, 2018, no pet.) (mem. op.)
(citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). The rule does
not require that the witness identifying the photograph took it, observed who took it,
or knew when it was taken. See Kirwan v. City of Waco, 249 S.W.3d 544, 549 (Tex.
App.—Waco 2008), rev’d on other grounds, 298 S.W.3d 618 (Tex. 2009). All that
is necessary is testimony from a witness with personal knowledge that the
photograph accurately depicts what it is “claimed to be.” Id.; TEX. R. EVID.
901(b)(1); see also Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314–15
(Tex. 1987) (“Admissibility of a photograph is conditioned upon its identification
by a witness as an accurate portrayal of the facts, and on verification by that witness
–33– or person with knowledge that the photograph is a correct representation of such
facts.”).
Here, Sherry was shown Exhibits 50 and 51 during her deposition. She
identified Joe in both pictures. To the extent Joe argues her testimony was “very
equivocal,” we disagree. While Sherry made some statements that the pictures were
“a little distorted” and “superimposed, maybe,” when asked twice if she recognized
the man in both exhibits, she unequivocally answered she recognized the man as her
husband.8 Further, one picture shows part of the FedEx logo with the time stamp
“20 02 04 15:29:45,” which the trial court could reasonably infer meant 3:29 p.m.
on February 4, 2020. One of the packages was sent on February 4, 2020.
Rule 901(b)(1) requires only a showing satisfying the trial court that the matter
in question is what its proponent claims. See Hernandez v. W-S Indus. Servs. Inc.,
No. 13-14-00404-CV, 2015 WL 5136771, at *3 (Tex. App.—Corpus Christi-
Edinburg, Aug. 31, 2015, no pet.) (mem. op.). The trial court, satisfied with the
quality of the pictures and Sherry’s identification, as a person with knowledge of
Joe’s appearance, acted within its discretion by finding that the pictures accurately
8 Q: Who do you recognize the man in Exhibit 50 to be? A: My husband . . . Q: Okay. What about Exhibit 51, do you recognize the man depicted in Exhibit 51? A: Yes. Q: Who do you recognize that man to be? A: That’s my husband. –34– depicted what they “claimed to be.” See TEX. R. EVID. 901(b)(1); see also Davidson,
737 S.W.2d at 314–15. We may, therefore, consider Exhibits 50 and 51 in our de
novo review of Joe’s motion to dismiss.9
Despite Exhibits 50 and 51, Joe argues appellees failed to provide the
evidentiary link that he sent the FedEx package on February 4, 2020, because the
evidence at most simply suggests he was at that Oak Lawn FedEx location on that
date. Joe specifically alleges appellees failed to authenticate Exhibit 48, which could
have closed the evidentiary gap. Again, we disagree.
Rule of evidence 901 requires the trial court to evaluate the evidence that
supports the item’s authenticity—whether found within the item itself or provided
by an extrinsic source. See Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020).
Evidence may also be authenticated by comparison with other authenticated
evidence or by circumstantial evidence. See Gadekar, 2018 WL 2440393, at *5
(citing Tienda, 358 S.W.3d at 638).
The custodian of records for FedEx Express provided documents in response
to the DWQs, which appellees attached to their TCPA response. One of the
“Shipment Information Reports,” indicated “Jay Bern” shipped a FedEx package,
tracking number 390151004245, from the Oak Lawn location on February 4, 2020
9 To the extent Joe argues appellees did not attach Exhibits 50 and 51 to Sherry’s deposition so the record fails to show “what Exhibit 50” was shown to her, we are unpersuaded by his argument. First, he has not challenged her identification of Exhibit 51. Further, Exhibit 50 is repeatedly referenced in multiple documents throughout the clerk’s record and the parties’ briefs. Exhibit 50 is consistently the same picture of Joe; therefore, Joe’s argument to the contrary is disingenuous. –35– to “ATTN: Portfolio Manager: TFNB Castle Creek Capital.” Exhibit 48, though not
attached to the DWQs, detailed the same information and further indicated the last
four numbers of the credit card used was 3650. The customer’s name who used the
credit card was “Joseph Beard.” Exhibit 48 showed a second transaction on March
16, 2020, for a package with tracking number 391149321437 billed to “Joe.” Again,
the credit card ending in 3650 was used by customer “Joseph Beard.”
It was within the trial court’s broad discretion to compare the authenticated
information within the “Shipment Information Reports,” which included the same
tracking numbers, transaction dates, name, and addresses, to the information in
Exhibit 48. Based on the commonalities between these two exhibits, we cannot say
the trial court acted arbitrarily or without any rules to guiding principles by
overruling Joe’s rule 901 objection to exhibit 48. Id.
With this evidence in mind, we now apply it to step two of the TCPA analysis.
The term “clear and specific” pertains to the quality of evidence required to establish
a “prima facie case”; and the term “prima facie case” pertains to the amount of
evidence necessary for a plaintiff to carry its minimal factual burden to support a
rational inference establishing each essential element of its claim. See Marble Ridge
Capital, 611 S.W.3d at 122. We conclude appellees met this burden.
Sherry explicitly identified Joe in a picture showing he was at FedEx on
February 4, 2020, the day one of the packages was sent to Castle Creek. FedEx
documents indicate “Jay Bern,” using Joseph Beard’s credit card, sent a FedEx
–36– package to Castle Creek on February 4, 2020 from the “DALKC” pick up location.
“DALKC” is the Oak Lawn FedEx location. Similarly, “Joe” used the credit card
linked to the customer named “Joseph Beard” on March 16, 2020, to send another
package to Castle Creek. This is “clear and specific evidence” identifying Joe as the
person who sent the FedEx packages because it is “free from doubt” and “referring
to a particular named thing.” See Lipsky, 460 S.W.3d at 587.
In reaching this conclusion, we are mindful and follow the supreme court’s
directive that at this stage in the litigation, the clear-and-specific-evidence
requirement “neither imposes a heightened evidentiary burden nor categorically
rejects the use of circumstantial evidence when determining the plaintiff’s prima-
facie-case burden.” See Sierra Club, 463 S.W.3d at 867 (citing Lipsky, 460 S.W.3d
at 587). However, appellees’ evidence is more than sufficient, and this is not a
doubtful case, particularly when we may consider circumstantial evidence.
Accordingly, appellees established a prima facie case for each of their remaining
causes of action by carrying their minimal factual burden to support a rational
inference establishing the only element Joe challenges on appeal—his identity. See
Marble Ridge Capital LP, 611 S.W.3d at 122.
Typically, the burden would shift back to Joe to establish a valid defense to
appellees’ claims; however, Joe has not raised any defenses on appeal. Therefore,
the trial court properly denied Joe’s motion to dismiss as to appellees’ remaining
causes of action.
–37– Conclusion
We reverse in part the trial court’s denial of Sherry’s dismissal motion. We
render judgment dismissing Littlewood’s defamation cross-claims against Sherry to
the extent those claims are based on her Facebook post and the Waco Tribune
statements regarding the killing of Boer goats. In all other respects, the trial court’s
order denying Sherry’s motion to dismiss is affirmed. Thus, Littlewood’s
defamation suit against Sherry may proceed in the trial court within this limited
scope.
The portion of the trial court’s order denying Joe’s TCPA motion to dismiss
TFNB’s Texas Finance Code section 59.002 claim (Libel or Slander of a Bank) is
reversed, and we render judgment dismissing that claim. In all other respects, the
trial court’s order denying Joe’s TCPA motion to dismiss appellees’ remaining
causes of action is affirmed.
On remand, in light of our disposition rendering dismissal of some of
appellees’ causes of action, the trial court shall award Sherry and Joe relief under
civil practice and remedies code section 27.009(a) (award of reasonable attorney’s
fees and costs).
–38– Otherwise, the case may proceed in the trial court consistent with our
resolution of these issues on interlocutory appeal.
/Craig Smith/ CRAIG SMITH JUSTICE
210478F.P05
–39– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHERRY BEARD AND JOSEPH On Appeal from the 193rd Judicial BEARD, Appellants District Court, Dallas County, Texas Trial Court Cause No. DC-20-04466. No. 05-21-00478-CV V. Opinion delivered by Justice Smith. Justices Carlyle and Garcia MCGREGOR BANCSHARES, INC. participating. AND THE FIRST NATIONAL BANK OF MCGREGOR D/B/A TFNB YOUR BANK FOR LIFE, AND DAVID LITTLEWOOD, Appellees
In accordance with this Court’s opinion of this date, the trial court’s June 16, 2021 dismissal orders are AFFIRMED in part and REVERSED and RENDERED in part.
We REVERSE in part and RENDER judgment dismissing the portion of the trial court’s June 16, 2021 order denying appellant Sherry Beard’s TCPA motion to dismiss appellee David Littlewood’s defamation cross-claims to the extent his claims are based on appellant Sherry Beard’s Facebook post and the Waco Tribune statements regarding the killing of Boer goats. In all other respects, the trial court’s June 16, 2021 order denying appellant Sherry Beard’s TCPA motion to dismiss is AFFIRMED.
We REVERSE the portion of the trial court’s June 16, 2021 order denying appellant Joseph Beard’s TCPA motion to dismiss appellee The First National Bank of McGregor Bancshares d/b/a TFNB Your Bank for Life’s Texas Finance Code section 59.002 claim (Libel or Slander of a Bank) and RENDER judgment dismissing that cause of action.
–40– In all other respects, the trial court’s June 16, 2021 order denying appellant Joseph Beard’s TCPA motion to dismiss is AFFIRMED.
We REMAND this cause to the trial court for further proceedings consistent with this opinion and for the trial court to award appellants Joe and Sherry Beard attorney’s fees pursuant to Texas Civil Practices and Remedies Code section 27.009(a).
It is ORDERED that each party bear their own costs of this appeal.
Judgment entered April 11, 2022.
–41–