Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-26-00109-CV Andrew HROVAT, Appellant v. Stephen HORTON, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 25-2316-CV-C Honorable William D. Old III, Judge Presiding Opinion by: Lori I. Valenzuela, Justice Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice H. Todd McCray, Justice Delivered and Filed: August 26, 2026 AFFIRMED In two issues, appellant Andrew Hrovat challenges the trial court’s order denying his motion to dismiss pursuant to the Texas Citizens’ Participation Act (“TCPA”). Hrovat first argues that appellee Stephen Horton failed to establish by clear and specific evidence a prima facie case for each essential element of all his claims against Horton. Hrovat next contends that even if Horton met his prima facie burden, Hrovat conclusively established an affirmative defense to each 04-26-00109-CV of Horton’s claims. Because Hrovat did not present a record sufficient to show reversible error, we affirm the trial court’s order. BACKGROUND Both Hrovat and Horton are involved in youth wrestling. On August 7, 2025, Horton sued Hrovat and Nicholas Janowitz, who is not a party to this appeal. He alleged that “since 2022, [Hrovat] has engaged in a continuing campaign of online defamation, falsely labeling [Horton] as a ‘pedophile’ on various internet platforms, social media, and in communications with wrestling organizations and officials.” Horton further alleged that the U.S. Center for SafeSport 1 had previously “conducted an extensive and thorough investigation of [Hrovat’s] false allegations” and “affirmatively cleared [Horton] of any inappropriate behavior/sexual misconduct with student athletes,” but “[Hrovat] was not satisfied with that and continued spinning his false narrative.” Horton asserted claims of defamation per se, tortious interference with employment contract, tortious interference with prospective business relations, business disparagement, and civil conspiracy. He also sought a declaratory judgment. On November 7, 2025, Hrovat filed a motion to dismiss Horton’s claims against him under the TCPA. In his motion, Hrovat argued that Horton could not establish a prima facie case for each required element of his causes of action. See TEX. CIV. PRAC. & REM. CODE § 27.005(c). He additionally argued that he could prove several affirmative defenses to Horton’s claims as a matter of law. See id. § 27.005(d). The record indicates that Janowitz also filed a TCPA motion, but that motion is not included in the appellate record. 1 Horton’s petition describes the U.S. Center for SafeSport as “an independent nonprofit 501(c)(3) committed to building a sport community where participants can work and learn together free of emotional, physical, and sexual abuse and misconduct.” -2- 04-26-00109-CV Horton filed a consolidated response to both Hrovat’s and Janowitz’s TCPA motions. Horton’s TCPA response relied on exhibits labeled A through M and a separate “Certified Transcript of Wrestling Meeting” (“the transcript”). The response indicated that the transcript was a record of a conversation between Hrovat and at least two other individuals involved in the wrestling community. Neither Horton’s exhibit M (which his response identified as “Social Media Log”) nor the transcript are included in the appellate record. Hrovat and Janowitz filed a consolidated reply in support of their TCPA motions. The reply raised several objections to Horton’s evidence, including the transcript. On January 8, 2026, the trial court held a hearing on Horton’s and Janowitz’s TCPA motions. During the hearing, it did not rule on either the motions themselves or the objections to Horton’s evidence. On February 6, 2026, the trial court signed a written order that denied Hrovat’s TCPA motion without stating a reason. The written order does not contain any rulings on Hrovat’s objections to Horton’s evidence. The appellate record does not contain any ruling, written or otherwise, on Janowitz’s TCPA motion. Hrovat now appeals the order denying his TCPA motion. ANALYSIS Standard of Review “We review de novo the denial of a TCPA motion to dismiss and whether the parties satisfied their respective burdens as set out in the TCPA.” Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.—San Antonio 2018, pet. denied). “We view the pleadings and evidence in the light most favorable to the nonmovant.” Id. The record in a TCPA appeal consists of “the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil -3- 04-26-00109-CV 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). TCPA Analysis A motion to dismiss under the TCPA is subject to a three-part analysis. First, the TCPA movant must demonstrate that the opposing party’s “legal action is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association” as those rights are defined by the TCPA. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b). For the purpose of this opinion, we will assume without deciding that Hrovat met his burden to establish that the TCPA applies to Horton’s claims. Once the movant shows the TCPA applies, the burden shifts to the respondent to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). The respondent “must provide enough detail to show the factual basis for its claim” and present “evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590–91 (Tex. 2015) (orig. proceeding). While a TCPA respondent “is not required to marshal all of its evidence” to establish a prima facie case, see Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 305 (Tex. App.—Houston [14th Dist.] 2020, no pet.), he must present “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 at 590 (internal quotation marks omitted). If the respondent satisfies this prima facie burden, the movant can nonetheless show he is entitled to a dismissal if he “establishes an affirmative defense or other grounds on which [he] is entitled to judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE § 27.005(d). -4- 04-26-00109-CV Application Hrovat argues that the record establishes that Horton did not satisfy his prima facie burden on all the required elements of his causes of action. With regard to the civil conspiracy claim, he contends that the trial court’s dismissal of the claims against his alleged co-conspirator, Janowitz, defeats that claim as a matter of law. He further argues that even if Horton met his prima facie burden, the record conclusively establishes Hrovat’s affirmative defenses of statute of limitations and qualified privilege. Assuming, as we have, that Hrovat showed the TCPA applied, Horton unquestionably bore the burden in the trial court to establish a prima facie case for his claims. See id. § 27.005(c). But as the appellant challenging the trial court’s ruling, Hrovat bore “a burden to bring forward an appellate record showing reversible error.” See, e.g., Galleria Loop Note Holder, LLC v. Lee, No. 13-20-00334-CV, 2021 WL 2694773, at *2 (Tex. App.—Corpus Christi–Edinburg July 1, 2021, no pet.) (mem. op.). In this TCPA appeal, that means he “needed to provide this Court with proof that [Horton] did not present sufficient evidence to support his prima facie case.” Id. at *3. Alternatively, he could also prevail by presenting a record establishing that one or both of the affirmative defenses on which he relies barred Horton’s claims as a matter of law. TEX. CIV. PRAC. & REM. CODE § 27.005(d). As explained above, Horton filed a response to Hrovat’s TCPA motion that cited several lettered exhibits and the transcript. That response cited its Exhibit M for the proposition that “USA Wrestling officials confirmed that Horton could not be sanctioned [in connection with Hrovat’s accusations]. . . . Despite this knowledge, Hrovat continued to publish and republish the accusations through social media and mass emails.” Horton’s TCPA response also identified Exhibit M as “documentary evidence of publication, republication, and escalation” of the -5- 04-26-00109-CV challenged accusations. Horton contended below that the transcript established that Hrovat “continued to repeat” the challenged accusations to USA Wrestling officials “after [Hrovat] knew Horton had been cleared” by USA Wrestling and SafeSport. He also argued that the transcript showed “Hrovat admitted that Horton had been cleared again just days” before the recorded conversation. These assertions about the contents of Exhibit M and the transcript are relevant to multiple elements of Horton’s defamation per se, tortious interference, and business disparagement claims. See Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam) (identifying elements of defamation); In re Lipsky, 460 S.W.3d at 596 (discussing defamation per se); Serafine v. Blunt, 466 S.W.3d 352, 361 (Tex. App.—Austin 2015, no pet.) (elements of tortious interference with existing contract); Cantu v. Falcon Int’l Bank, No. 04-17-00467-CV, 2018 WL 1831651, at *3 (Tex. App.—San Antonio Apr. 18, 2018, pet. denied) (mem. op.) (elements of tortious interference with prospective business relations); Elkins, 553 S.W.3d at 613 (elements of business disparagement). These assertions are also arguably relevant to at least one element of Horton’s civil conspiracy claim. See Elkins, 553 S.W.3d at 613 (civil conspiracy claimant must establish, inter alia, that alleged co-conspirators took “one or more unlawful, overt acts”). Significantly, however, neither Exhibit M nor the transcript are included in the appellate record. Hrovat’s written request for the clerk’s record asked the district clerk to prepare and file “Plaintiff’s [January 2, 2026] Response in Opposition to Defendants’ Motions to Dismiss,” but it did not explicitly ask the district clerk to prepare and file either the lettered exhibits or the transcript. 2 Hrovat also did not request the inclusion of Janowitz’s TCPA motion or the order 2 Horton’s TCPA response indicates that the transcript was “filed concurrently” with the response; the transcript does not appear to have been directly attached to the response as an exhibit, as the lettered exhibits were. However, Horton cited the transcript in his TCPA response as evidence of his defamation claim, Hrovat objected to it in his reply in support of the TCPA motion, and the parties discussed it at the hearing on the TCPA motion. Additionally, Hrovat’s appellate brief refers to the transcript and its contents. Accordingly, both the record and Hrovat’s briefing demonstrate that the transcript was filed with the clerk and before the trial court when it ruled on Hrovat’s TCPA motion. -6- 04-26-00109-CV granting that motion in the appellate record. 3 The record does not indicate that Hrovat ever asked the district clerk to supplement the clerk’s record with any omitted materials. See TEX. R. APP. P. 34.5(c). The Thirteenth Court of Appeals has twice considered TCPA appeals in which an appellant failed to bring forth a complete reporter’s record. See Galleria Loop, 2021 WL 2694773, at *2–3; Kocaoglan v. Law Office of Chris Sanchez, P.C., No. 13-19-00596-CV, 2021 WL 161395, at *4– 5 (Tex. App.—Corpus Christi–Edinburg Jan. 14, 2021, pet. denied) (mem. op.). In both cases, the court concluded that the appellant’s failure to present a complete reporter’s record mandated a presumption “that the missing portions of the record support the trial court’s order[.]” Galleria Loop, 2021 WL 2694773, at *3; Kocaoglan, 2021 WL 161395, at *4–5. We have not located any TCPA cases that directly considered an appellant’s failure to present a complete clerk’s record—i.e., “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. Because the analysis in Galleria Loop and Kocaoglan relied on Texas Rule of Appellate Procedure 34.6(c), which applies only when appellant presents a partial reporter’s record, those cases are somewhat distinguishable from these facts. See TEX. R. APP. P. 34.6(c). However, our de novo review of the evidence in a TCPA appeal is similar to the review that applies to other dispositive motions like “evidence-based pleas to the jurisdiction” and motions for summary judgment. See Sloat v. Rathbun, 513 S.W.3d 500, 503 n.2 (Tex. App.—Austin 2015, 3 Hrovat included a purported copy of the order granting Janowitz’s motion in the appendix to his brief. However, it is well-established that “[d]ocuments attached as exhibits or appendices to briefs do not constitute formal inclusion of such documents in the record on appeal, and we cannot consider matters outside the record in our review.” Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.—Houston [1st Dist.] 2020, no pet.); Sung Sik Choi v. Juggernaut Transp., Inc., No. 05-16-01386-CV, 2017 WL 2729907, at *2 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) -7- 04-26-00109-CV pet. dism’d); compare In re Lipsky, 460 S.W.3d at 590 (describing prima facie burden applicable to TCPA non-movant), with TEX. R. CIV. P. 166a(h) (describing summary judgment practice). And, as is the case here, the evidence that determines the resolution of those dispositive motions will typically appear in the clerk’s record, not the reporter’s record. See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004) (noting that creation of a reporter’s record is “neither necessary nor appropriate to the purposes of” a summary judgment hearing); Shopoff Advisors, LP v. Atrium Circle, GP, 596 S.W.3d 894, 901 (Tex. App.—San Antonio 2019, no pet.) (“In determining whether the parties have met their respective burdens [under the TCPA], the trial court does not hear live testimony[.]”). In summary judgment cases, both the Texas Supreme Court and this court have noted that “[i]f the pertinent summary judgment evidence considered by the trial court is not included in the appellate record, an appellate court must presume that the omitted evidence supports the trial court’s judgment.” See Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004) (per curiam); Stone v. K Clark Prop. Mgmt LLC, No. 04-22-00454-CV, 2023 WL 7365337, at *3 (Tex. App.—San Antonio Nov. 8, 2023, no pet.) (mem. op.); see also Sung Sik Choi, 2017 WL 2729907, at *1–2; Mallios v. Standard Ins. Co., 237 S.W.3d 778, 781–83 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). We hold the same result is appropriate here. A merits-based review of Hrovat’s appellate issues would require us to examine the same pleadings and evidence the trial court considered to determine if: (1) Horton satisfied his prima facie burden; (2) Hrovat conclusively established his affirmative defenses; and/or (3) the trial court’s dismissal of the claims against Janowitz negated the conspiracy claim against Hrovat. But because the transcript, Horton’s Exhibit M, Janowitz’s TCPA motion, and the order granting Janowitz’s TCPA motion have been omitted from the record, we have no way of knowing what those documents showed and thus no way of determining -8- 04-26-00109-CV whether they support Hrovat’s appellate arguments. See Galleria Loop, 2021 WL 2694773, at *3; Mallios, 237 S.W.3d at 783. In short, we do not have all the information necessary to perform our de novo review of the trial court’s ruling. See Galleria Loop, 2021 WL 2694773, at *3; Kocaoglan, 2021 WL 161395, at *4–5; Mallios, 237 S.W.3d at 783; see also TEX. CIV. PRAC. & REM. CODE § 27.005(c), (d). In order to accept Hrovat’s arguments on appeal, we would have to assume that the omitted documents either contain no evidence to support each element of Horton’s claims or conclusively establish Hrovat’s affirmative defenses. On this incomplete record, we must presume the missing evidence supports the trial court’s ruling. See Barrios, 156 S.W.3d at 549–50; Galleria Loop, 2021 WL 2694773, at *3; Kocaoglan, 2021 WL 161395, at *4–5. We note that in his appellate brief, Hrovat argues that the transcript was not authenticated, that it contained hearsay, and that Horton did not lay a proper foundation for it. Although Hrovat asserted these objections below, he did not obtain a ruling on them or object to the trial court’s failure to rule on them. He therefore did not preserve those objections for our review. TEX. R. APP. P. 33.1(a)(2); Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668 S.W.3d 745, 763 (Tex. App.— El Paso 2022, no pet.). But even if he had preserved those objections, we cannot review them without access to the challenged exhibit. For these reasons, Hrovat’s “assertion that the trial court erred by denying the motion to dismiss . . . is insufficient on the record before us.” Kocaoglan, 2021 WL 161395, at *5; see also, e.g., Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam). We therefore overrule his appellate issues. -9- 04-26-00109-CV CONCLUSION We affirm the trial court’s order denying Hrovat’s TCPA motion to dismiss. Lori I. Valenzuela, Justice - 10 -