Jordan Taylor Hawkes and Brian Roby v. Evan Zwerneman, Individually, and EZ Stay and Play, LLC

Affirmed in Part and Reversed and Rendered in Part and Memorandum Opinion filed August 25, 2026. In The Fifteenth Court of Appeals NO. 15-25-00185-CV JORDAN TAYLOR HAWKES AND BRIAN ROBY, Appellants V. EVAN ZWERNEMAN, INDIVIDUALLY, AND EZ STAY AND PLAY, LLC, Appellees On Appeal from the 483rd District Court Hays County, Texas Trial Court Cause No. 25-1672-DCF MEMORANDUM OPINION This interlocutory appeal arises from a lawsuit against Appellants Jordan Taylor Hawkes and Brian Roby. The trial court denied Appellants’ motion to dismiss, under the Texas Citizens Participation Act (TCPA), the claims of Appellees Evan Zwerneman and EZ Stay and Play, LLC. We affirm the trial court’s denial as to Appellees’ fraud and conversion claims. We reverse and render judgment dismissing the remaining claims.  BACKGROUND Prior to leaving on their honeymoon, Appellants arranged for their dog, Kali, to board at EZ Stay and Play, LLC (“EZ Dog”), a dog-boarding facility owned by Zwerneman.1 In August 2024, during Kali’s stay with EZ Dog, Kali died. The parties dispute a number of facts regarding the cause and circumstances surrounding Kali’s death. Zwerneman alleges that Kali had “considerable pre- existing and unrelated medical complications,” including severe anxiety, and that, although “[o]verheating was determined to be one cause of death,” the exact cause of death had not been definitively determined. Zwerneman further alleges that Kali had begun “showing signs of anxiety” and died after arriving at the veterinary clinic. According to Appellants, Hawkes was informed that Kali had “overheated” while in the facility’s day care van. Appellants assert that Kali had already been dead for several hours when she was taken to the veterinary clinic. Appellants also assert that a second dog died by overheating in the same van. Regardless, Appellants took the position that Appellees were responsible for Kali’s death. Appellants notified the Hays County Animal Abuse department of the incident.2 Months after the incident, Zwerneman began to receive messages from unknown contacts referring to him as a “murderer.” Zwerneman also received a call from a news reporter asking for comments regarding the incident. Zwerneman then ran a Google search of himself and found the business website “ezdogstaynplay.com,” similar to his own website “ezdogstayandplay.com.” The website included a caption that read “Killing your dog so you don’t have 1 Though Zwernemann, individually, and EZ Dog are appellees, we refer to both simply as “Zwerneman.” 2 Appellants state that the results of this investigation are ongoing. Zwerneman states that he was “fully cleared from the investigation” and was not charged. 2 to.” Below the caption was a picture of Kali, along with the following statements: Ez Dog Stay & Play is responsible for the death our [sic] our dog, along with another in August 2024. Our dogs died due to the extreme heat conditions while in the back of the cargo vans that they use to transport dogs to and from their client’s homes. There is no AC in the cargo section of these vans. The website also stated: “I implore any current or potential client to seek dog care elsewhere. Our family continues to mourn the death of Kali and we hope that no other family experiences what we have gone through.” Zwerneman alleges that the website also stated that “Evan, the owner, did not apologize to [Hawkes’s] family, and instead hung up the phone when [her] husband became upset. [Hawkes and Roby] were still out of town, on the first day of [their] honeymoon, when this occurred.” Zwerneman was later informed by Google that a person registered to the email of “jo…@gmail.com” had assumed control of EZ Dog’s online business page. Zwerneman alleges that this email address matches the address for Hawkes. EZ Dog’s business photo on the Google page had also been changed to a photo of Kali. Zwerneman reported Appellants’ alleged actions and statements to the Hays County Sherriff’s Office for criminal “Online Impersonation.” See Tex. Penal Code § 33.07. On June 4, 2025, Zwerneman, in his individual capacity, and EZ Dog filed suit in Hays County District Court against Hawkes and Roby, alleging seven causes of action: (1) libel & libel per se, (2) business disparagement, (3) fraud, (4) intentional infliction of emotional distress, (5) theft of identity and cyber property (conversion),3 (6) tortious interference with an existing contract, and (7) tortious 3 Though Zwerneman referred to the claim at the trial court and on appeal as “theft of identity and cyber property,” his argument is based on the elements of conversion. For purposes of this appeal, we refer to this claim as “conversion.” 3 interference with prospective contracts (business relations). Zwerneman sought damages, a temporary restraining order, and injunctive relief. In his petition, Zwerneman asserted that Appellants made a number of online public statements that were false, misleading, or unsubstantiated. These statements are listed below: 1. “EZ Dog is responsible for the death of our dog.” 2. “There is no A/C in the cargo sections of these vans.” 3. “Evan did not apologize.” 4. “We provide inhumane conditions.” 5. “Evan told everyone the dogs ‘got hot.’” 6. “KXAN investigated EZ Dog.” 7. “No consequences were met.” 8. “Killing your dog so you don’t have to.”4 Attached to the petition was an affidavit of Zwerneman attesting to the falsity of these statements.5 Zwerneman asserted that Appellants’ alleged creation of the website and control of the Google business page constituted fraud and theft of the online identities of himself and EZ Dog. On July 9, 2025, Appellants filed a Motion to Dismiss Under the TCPA, arguing that their public statements and internet postings were “communications” constituting “matters of public concern” that warranted dismissing Zwerneman’s claims. Appellants also attached to the motion (1) clinical summaries from Central Texas Veterinary Specialty and Emergency regarding the two deceased dogs and (2) 4 Appellants characterize statements 4 and 8 as satirical statements. 5 It is unclear from Zwerneman’s pleadings whether statements 4-7 come from Appellants’ website, or if those statements were posted separately. 4 Zwerneman’s first amended petition, including his affidavit. Zwerneman filed a response to the motion, arguing that his lawsuit was unrelated to Appellants’ exercise of the right of free speech, and that Appellants failed to provide sufficient evidence. Attached to this response was another affidavit of Zwerneman rebutting a number of facts presented in Appellants’ TCPA motion. Appellants filed a reply asserting that they were not required to present any evidence and could rely solely on Zwerneman’s pleadings. Appellants also asserted that Zwerneman failed to produce clear and specific evidence for each of his claims. After a hearing, the trial court denied the TCPA motion. This appeal followed.6 See Tex. Civ. Prac. & Rem. Code §§ 27.008, 51.014(a)(12). ANALYSIS The purpose of the TCPA “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Id. § 27.002. Courts are to construe the TCPA “liberally to effectuate its purpose and intent fully.” Id. § 27.011(b). A party may move to dismiss a lawsuit pursuant to the TCPA if the suit 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 . . . .” Id. § 27.003(a). The moving party bears the initial burden to demonstrate by preponderance of the evidence that the suit is based 6 The Court received this appeal as part of a transfer order from the Supreme Court for docket equalization. To the extent possible, this Court is required to apply precedent from the Third Court of Appeals—the appellate court from which this case was transferred. Tex. R. App. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251, 255–56 (Tex. 2022); Hanson v. Garza, No. 15-25-00166-CV, 2026 WL 844641, at *2 n.3 (Tex. App.—15th Dist. March 26, 2026, no pet.) (mem. op.). 5 on or in response to one of these rights. Id. § 27.005(b); Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019). The burden then shifts to the plaintiff to establish “by clear and specific evidence a prima facie case for each essential element of the claims in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c). Additionally, the court must dismiss the suit “if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” Id. § 27.005(d). In determining whether a lawsuit is subject to or should be dismissed under the TCPA, the court must consider “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.” Id. § 27.006(a). We review de novo a trial court’s ruling on a TCPA motion. Human Power of N Co. v. Turturro, No. 03-24-00305-CV, 2024 WL 4643931, at *2 (Tex. App.—Austin November 1, 2024, no pet.) (mem. op.); see Hall, 579 S.W.3d at 377 (“We review de novo the court of appeals’ determinations that the parties met or failed to meet their burdens of proof under section 27.005.”). We also “consider the pleadings, evidence that could be considered at summary judgment, and any supporting and opposing affidavits, in the light most favorable to the nonmovant.” Turturro, 2024 WL 4643931, at *2; Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d). In addition, we review issues of statutory construction de novo. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Appellants argue that the trial court improperly denied their TCPA motion to dismiss Zwerneman’s defamation claim and the other claims arising out of the same statements. Zwerneman responds that Appellants failed to meet their burden to show that the TCPA applies to the claims, Zwerneman has otherwise met his own burden to show a prima facie case for each element of their claims, and the case is based on 6 common-law fraud and therefore exempt from TCPA dismissal. We address these arguments by following the TCPA’s multi-step analysis. I. Step One: Applicability of the TCPA We begin by determining whether the TCPA applies to Zwerneman’s claims, noting that the parties disagree on the fundamental nature of this case. Appellants state that this is “primarily a defamation case” involving Appellants’ public comments about the death of their dog. In contrast, Zwerneman asserts that, while defamation is one of the causes of action, the TCPA is inapplicable because the nature of the case principally concerns fraud and identity theft. Regardless of the parties’ characterization of this case, our analysis does not require determining whether the TCPA applies to the entire lawsuit. Rather, “[d]ismissal under the TCPA is determined on a claim-by-claim basis,” Parikh v. Fields, No. 14-24-00234-CV, 2025 WL 2811897, at *4 (Tex. App.—Houston [14th Dist.] October 2, 2025, pets. denied.) (mem. op.), and courts may dismiss some claims while preserving others. a. Appellants’ Statements Appellants argue that the aforementioned public statements are protected speech under the TCPA, the First Amendment of the United States Constitution, and, for a few of the statements, Article I of the Texas Constitution because each statement can be placed into one of the following categories: (1) matters of public concern regarding animal cruelty, (2) expressions of opinion and criticism, or (3) satire.7 However, because this is a TCPA motion appeal, we must determine whether 7 Appellants state in their TCPA motion that Brian Roby had “never published or made any statements about Plaintiffs or committed any of the acts of which he is accused in Plaintiff’s pleadings.” Although Appellants deny that Roby made any of the alleged statements, Zwerneman’s pleadings generally attribute the alleged public statements to both Hawkes and Roby. Without giving an opinion as to who specifically made the statements, for purposes of this appeal, we attribute the statements to Appellants generally based on Zwerneman’s pleadings. See 7 the statements are protected by the TCPA itself—not whether such statements would otherwise be constitutionally protected to the extent that constitutional protections differ from the TCPA’s definitions. The TCPA defines an “exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). “Communication” is defined to include “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). Further, a “matter of public concern” is defined as “a statement or activity regarding: (A) a public official, public figure, or other person who has drawn substantial public attention . . .; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public.” Id. § 27.001(7)(C). Appellants argue that the statements constitute “communications.” We agree. “[T]he term encompasses ‘[a]lmost every imaginable form of communication, in any medium,’” Roberts Markel Weinberg Butler Hailey PC v. Madison, No. 08-23- 00323-CV, 2024 WL 2780420, at *3 (Tex. App.—El Paso May 30, 2024, pet. denied) (mem. op.) (quoting Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018)), and statements posted on the internet would certainly qualify, see Wang v. Test Masters Educ. Servs., Inc., No. 01-25-00048-CV, 2026 WL 1791166, at *3 (Tex. App.—Houston [1st Dist.] June 23, 2026, no pet.) (mem. op.) (online reviews are “communications”); Whitelock v. Stewart, 661 S.W.3d 583, 596 (Tex. App.—El Paso 2023, pet. denied) (social media comments are “communications”). Appellants also assert that the statements “EZ Dog is responsible for the death Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“The basis of a [TCPA] legal action is not determined by the defendant’s admissions or denials but by the plaintiff’s allegations.”). 8 of our dog” and “[t]here is no A/C in the cargo sections of these vans” are matters of public interest because they relate to animal cruelty. We agree. It is well settled that “communications about animal abuse” and “accusing someone of engaging in a criminal offense (including animal cruelty)” can be considered “of concern to the public or of interest to the community” under the TCPA. See, e.g., Whitelock, 661 S.W.3d at 596–97; Duncan v. Acius Grp., LP, No. 05-18-01432-CV, 2019 WL 4392507, at *3 (Tex. App.—Dallas Sept. 13, 2019, no pet.) (mem. op.) (recognizing that “communications alleging animal abuse and killing” were made in connection with matters of public concern); Maldonado v. Franklin, No. 04-18-00819-CV, 2019 WL 4739438, at *7 (Tex. App.—San Antonio Sept. 30, 2019, no pet.) (mem. op.), abrogated on other grounds by Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (concluding that statements about “alleged criminal mistreatment” of a dog were communications made “in connection with” a matter of public concern— specifically, animal welfare); Cummins v. Bat World Sanctuary, No. 02-12-00285- CV, 2015 WL 1641144, at *10 (Tex. App.—Fort Worth Apr. 9, 2015, pet. denied) (mem. op.) (per curiam) (holding that “allegations of animal cruelty can be a matter of public concern”); Beard v. McGregor Bancshares, Inc., No. 05-21-00478-CV, 2022 WL 1076176, at *6 (Tex. App.—Dallas Apr. 11, 2022, pet. denied) (mem. op.) (stating that “killing animals” is a criminal act and, thus, a matter of public concern); Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 WL 733302, at *3–4 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (concluding that a criminal investigation was a matter of public interest); see also Tex. Civ. Prac. & Rem. Code § 27.001(7)(B), (C). Indeed, all eight statements are connected to Appellants’ belief and assertion that Zwerneman was responsible for the death of their dog. Further, Appellants’ statement on the website that they “hope that no other family experiences what [they] have gone through” shows that their actions were motivated 9 by concern for the safety of animals belonging to other members of the public. We therefore conclude that Appellants’ statements are “communication[s] made in connection with a matter of public concern” and are, thus, “exercise[s] of the right of free speech.” Tex. Civ. Prac. & Rem. Code § 27.001(3). b. Zwerneman’s Claims The TCPA also requires that the “legal action” be “based on” or “in response to” this exercise of the right of free speech. Id. § 27.005(b)(1)(A). A “legal action” includes a “cause of action.” Id. § 27.001(6). And a legal action is “based on” this exercise when the relevant communications are a “factual predicate, main ingredient, or fundamental part” of the legal action. Key v. Tiffany Condo. Owners Ass’n, No. 03-25-00726-CV, 2026 WL 1309162, at *6 (Tex. App.—Austin May 13, 2026, no pet.) (mem. op.); Hanna v. Williams, 681 S.W.3d 416, 424–25 (Tex. App.—Austin 2023, pets. denied); see Ernst & Young, LLP v. Ryan, LLC, No. 01-21-00603-CV, 2023 WL 4239350, at *9 (Tex. App.—Houston [1st Dist.] June 29, 2023, pet. denied) (mem. op.) (Farris, J., concurring). Appellants assert that the statements are the basis for Zwerneman’s defamation claim. Regarding the other claims, Appellants characterize them as “tag- along” torts arising from the same conduct. Zwerneman argues that the acts of creating Appellants’ website and commandeering EZ Dog’s online page are the basis for the entire lawsuit. Examining each of Zwerneman’s claims, we conclude that six are “based on” or “in response to” Appellants’ exercise of the right of free speech: defamation, business disparagement, fraud, intentional infliction of emotional distress, and the two tortious interference claims. The defamation and business disparagement claims are expressly tied to Appellants’ statements—particularly, Zwerneman highlights 10 the statement “[k]illing your dog so you don’t have to” as a relevant fact for these two claims. The fraud claim is based, at least in part, on Appellants “pretending to be the plaintiffs online,” and Zwerneman includes in his pleadings screenshots of the “fraudulent website” displaying some of the statements. The intentional infliction of emotional distress claim broadly encompasses these statements, particularly where Zwerneman pleads that “[a]ll of [Appellants’] actions were taken with malice . . . and expressed publicly with the clear intent to cause emotional and economic damages.” The tortious interference with existing contracts claim is based on alleged “false information intentionally distributed” by Appellants. And the tortious interference with prospective contracts claim is based on Appellants’ statement that they “implore any current or potential client to seek dog care elsewhere.”8 Thus, each of these six claims is factually predicated on Appellants’ statements regarding their dog’s death. The only claim not factually predicated on these statements is the conversion claim. Zwerneman states in his pleadings that: Plaintiff is the sole owner of his identity and the sole owner of EZ Stay and Play, LLC. Defendants 1) stole Plaintiff’s identity online by creating a fraudulent website in Plaintiffs’ name, and 2) exercised control over Plaintiffs’ identity and online profiles with blatant disregard for Plaintiffs’ rightful ownership. Plaintiff presented Defendants with a cease and desist letter on these very topics, and Defendants confirmed their receipt of the notice. Nevertheless, Defendants continue to perpetuate their theft of Plaintiffs’ identity and online business pages. There is no mention in these allegations of a statement that would be connected with animal cruelty. Rather, this claim stems from the allegedly stolen property interest 8 While this statement is not one of the eight expressly identified by Appellants, it is still a communication connected to a public matter involving animal cruelty. 11 in Zwerneman and EZ Dog’s online identities. Considering the pleadings in the light most favorable to the non-movant, Turturro, 2024 WL 4643931, at *2, Sloat, 513 S.W.3d at 504, we cannot conclude that the conversion claim is “based on” or “in response to” one of Appellants’ statements. Zwerneman argues that Appellants failed to meet their burden to show that the TCPA applies because their evidence is insufficient. Specifically, Zwerneman asserts that the clinical summaries attached to the TCPA motion are “blatantly falsified,” “not proven up in any away,” “offer no supporting or corroborating affidavits,” and “do not provide context as to the original creation of the documents and/or subsequent alterations or edits.” In response, Appellants argue that pleadings alone are sufficient to establish that the TCPA’s applies. Appellants are correct. In considering the burden to establish the TCPA’s application by preponderance of the evidence, “the plaintiff’s petition . . . is the best and all-sufficient evidence of the nature of the action.” Hersh, 526 S.W.3d at 467 (citation modified). In other words, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered by the [TCPA], the defendant need show no more.” Id. Having concluded above that the TCPA applies to most of Zwerneman’s claims based on his pleadings, Appellants were not required to provide any other evidence to satisfy their burden, and determining the sufficiency of the evidence is inconsequential at this stage.9 c. Common Law Fraud Exemption Regarding Zwerneman’s fraud claim, we must determine whether he has 9 Appellants briefly argue that Zwerneman’s claims are “based, in part, on Appellants reporting them to law enforcement authorities” and are, thus, based on or in response to their right to petition. See Whitelock v. Stewart, No. 10-23-00132-CV, 2025 WL 2473021, at *3 (Tex. App.— Waco August 28, 2025, no pet) (mem. op.) (“The Whitelocks’ statements to the police also 12 established that the TCPA’s common-law fraud exemption applies. Zwerneman appears to argue that this exemption precludes a TCPA dismissal not only to the claim itself, but to the lawsuit as a whole. The TCPA exempts “legal action[s] based on a common law fraud claim.” Tex. Civ. Prac. & Rem. Code § 27.010(a)(12). Claims are “based on” common law fraud when common law fraud itself is the claim, or if the claims “require proof of common law fraud as part of their elements . . . .” Baylor Scott & White v. Project Rose MSO, LLC, 633 S.W.3d 263, 287 (Tex. App.—Tyler 2021, pet. denied); Soler v. Sukerman, No. 03-24-00783-CV, 2025 WL 1634088, at *2 (Tex. App.—Austin June 10, 2025, pet. denied) (mem. op.). The non-movant bears the burden to “prove that a statutory exemption from application of the TCPA applies, and we review de novo a trial court’s determination regarding the applicability of a TCPA exemption.” Turturro, 2024 WL 4643931, at *2. “Just as determining the applicability of the TCPA, the applicability of an exemption may be determined from the pleadings.” Baylor Scott & White, 633 S.W.3d at 281; cf. Trivista Oil Co. v. Fort Apache Energy, Inc., 729 S.W.3d 468, 480 (Tex. App.—Austin 2025, no pet.) (stating that the TCPA’s commercial-speech exemption may be based on “[f]actual allegations in a plaintiff’s petition alone”). After showing that the exemption applies, the non-movant need not make a prima implicate the right to petition under the TCPA.”); Murphy USA, Inc. v. Rose, No. 12-15-00197- CV, 2016 WL 5800263, at *3–4 (Tex. App.—Tyler October 5, 2016, no pet.) (mem. op.) (exercise of the right to petition includes “reporting [an] incident to law enforcement officials”). Because we conclude that six of the claims are based on an exercise of the right of free speech, we need not reach whether they are also based on another right protected by the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.003(a) (stating a suit must be “based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” (emphasis added)). With regard to the conversion claim, Appellants point to nothing in Zwerneman’s pleadings clearly showing that this claim stems from their report to law enforcement. Therefore, the exercise of the right to petition under the TCPA is inapplicable. 13 facie case for the legal action. Baylor Scott & White, 633 S.W.3d at 281; see Trivista Oil Co, 729 S.W.3d at 475. Further, a court’s conclusion that a claim is exempt from the TCPA does not necessarily protect an entire lawsuit from dismissal. Rather, “TCPA exemptions are to be applied on a cause-of-action-by-cause-of-action basis,” and an exemption applied to a single claim is not inclusive of the others. Turturro, 2024 WL 4643931, at *3. To establish common law fraud, a plaintiff must show: (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (citation modified). In his pleadings, Zwerneman alleges the following: Defendants acted with a clear intent to commit fraud in pretending to be the Plaintiffs online. Defendants created a false website copying an active Texas limited liability company recognized by the Texas Secretary of State. This is a large material misrepresentation to the public, and certifiably false. Defendants know they are not the Plaintiffs, and they know they do not own EZ Play and Stay, LLC [sic] or its online business profiles. This fraud was committed with the intention to defraud the public into forming ill will and causing economic damage to the Plaintiffs. Said fraud also led to the Plaintiffs suffering economic damages and business losses which have been described in this lawsuit. Based on the above, Zwerneman has established that the TCPA’s common law fraud exemption applies and need not make a prima face case for his fraud claim. See Parikh v. Johnson, No. 14-23-00764-CV, 2025 WL 310674, at *4 (Tex. App.— 14 Houston [14th Dist.] January 28, 2025, no pet.) (mem. op.). However, to the extent that Zwerneman argues that this exemption alone would make TCPA dismissal inappropriate as to the entire lawsuit, we disagree. See Turturro, 2024 WL 4643931, at *3 (stating that TCPA exemptions “are to be applied on a cause-of-action-by- cause-of-action basis”). None of Zwerneman’s other claims requires proof of common law fraud, meaning that those claims would not be “based on” common law fraud as the exemption requires. See Baylor Scott & White, 633 S.W.3d at 282– 83, 291–94 (holding that claims of unjust enrichment, civil conspiracy, and aiding and abetting breach of fiduciary duties are “based on” common law fraud and exempt from TCPA dismissal, but claims of tortious interference, promissory estoppel, quantum meruit, and money had and received are not). We therefore conclude that the TCPA applies to each claim except for fraud and conversion. We next consider the issue of the prima facie case. II. Step Two: Prima Facie Case “A prima facie case is ‘the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” Hall, 579 S.W.3d at 376–77 (quoting KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 721 (Tex. 2016)). More than “mere notice pleading is required to establish a plaintiff’s prima facie case.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017). Clear and specific evidence requires the plaintiff to “provide enough detail to show the factual basis for its claim and . . . provide enough evidence to support a rational inference that the allegation of fact is true.” Hall, 579 S.W.3d at 377 (citation modified). To establish clear and convincing evidence, the plaintiff “may rely on circumstantial evidence— indirect evidence that creates an inference to establish a central fact—unless ‘the connection between the fact and the inference is too weak to be of help in deciding the case.’” Id. (quoting In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015)). 15  In contrast to the movant’s burden, which may be established on the pleadings alone, the non-movant’s burden is heavier. A court “may consider the pleadings” as part of the prima facie case analysis, but the pleadings “are not sufficient by themselves to satisfy this standard.” Baylor Scott & White, 633 S.W.3d at 290; see Trivista Oil Co., 729 S.W.3d at 475 (“Allegations alone are often not specific enough to make a prima facie case; the nonmovant must offer or produce evidence of facts to make the prima facie case.”); Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 29 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“[A]ccepting all allegations as true for purposes of establishing a prima facie case—without concomitantly demanding evidence that is legally sufficient to establish the allegations as factually true if it is not countered—would nullify the very purpose of the TCPA’s burden- shifting mechanism. Indeed, the burden would never shift at all.” (citation omitted)); cf. Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex. 1971) (“Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes.”). a. Defamation We first address Zwerneman’s libel and libel per se claim. Libel is a “defamatory statement expressed in written or other graphic form.” Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018); see Tex. Civ. Prac. & Rem. Code § 73.001 (statutory definition of libel). To establish a libel or defamation claim, Zwerneman must present clear and convincing evidence that proves: “(1) the 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) damages, in some cases.” Lipsky, 460 S.W.3d at 593; see Warner Bros. Ent., Inc. v. Jones, 538 S.W.3d 781, 800 (Tex. App.—Austin 2017, pet. granted), aff’d on other grounds, 611 S.W.3d 1 (Tex. 2020) (applying the elements of defamation to statutory libel). 16 The requisite degree of fault depends on the plaintiff’s status—“[a] private individual need only prove negligence, whereas a public figure or official must prove actual malice.” Lipsky, 460 S.W.3d at 593. “It is well settled that ‘the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person’s perception of the entirety of a publication and not merely on individual statements.’” Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)). Corporations and other business entities may also sue for defamation. Lipsky, 460 S.W.3d at 593. Zwerneman argues primarily that Appellants’ statements constitute libel or defamation per se. A defamation claim is either per se or per quod. Tatum, 554 S.W.3d at 624. Defamation per quod is “defamation that is not actionable per se” and requires proof of damages. Id. Defamation per se “refers to statements that are so obviously harmful that general damages may be presumed.” Lipsky, 460 S.W.3d at 593. “Special damages . . . are never presumed.” Id. Defamation per se may be broken down into “separate categories of falsehoods,” including “[a]ccusing someone of a crime” or “remarks that adversely reflect on a person’s fitness to conduct his or her business or trade.” Id. at 596. According to Zwerneman, each of his claims, including his claim for libel and libel per se, were “proven up by affidavits.” Looking to the record, the only affidavits Zwerneman provides are (1) his affidavit attesting to the falsity of Appellants’ statements and (2) his affidavit rebutting a number of the facts presented in the TCPA motion. Though the first affidavit provides specific facts and could support the falsity element of a defamation claim, neither affidavit supports the third element. Zwerneman’s pleadings make no mention of facts that could support a finding of the requisite degree of fault needed to prove defamation—whether that be actual malice for a public figure or negligence for a private individual—nor is this 17 requirement included in either of his affidavits. And though Zwernemann states in pleadings that all of Appellants’ actions were “blatantly malicious,” the mere recitation of an element of the claim is not enough. Consequently, Zwerneman has not established a prima facie case for defamation, whether it be per quod or per se. See Day v. Fed’n of State Med. Bds. of the U.S., Inc., 579 S.W.3d 810, 822–23 (Tex. App.—San Antonio 2019, pet. denied) (failure to establish prima facie case for defamation due in part to lack of proof of requisite degree of fault); Garcia v. Semler, 663 S.W.3d 270, 284 (Tex. App.—Dallas 2022, no pet.) (“Garcia had the burden to produce clear and specific evidence that Semler acted negligently in making a false, defamatory statement about Garcia.”); see Wang v. Guo, No. 03-23-00244, 2025 WL 936666, at *6 (Tex. App.—Austin March 28, 2025, no pet.) (mem. op.) (requiring proof of fault for defamation per se). b. Business Disparagement For a business disparagement claim, the plaintiff must prove that: “(1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Lipsky, 460 S.W.3d at 592. We need only address the fourth element. Zwerneman alleges that Appellants’ actions “have caused economic damage” to his business.10 But “[b]are, baseless opinions” are not a “sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA.” Id. Zwerneman otherwise offers no evidence or specific facts that would establish a prima facie case for the special damages element. Id. at 593. (“We accordingly disagree with the court of appeals that general averments of direct economic losses and lost profits, without more, satisfy the minimum requirements of the TCPA.”). 10 The Texas Supreme Court has stated that “[s]pecial damages are synonymous with economic damages . . . .” Lipsky, 460 S.W.3d at 592 n.11. 18  c. Intentional Infliction of Emotional Distress The elements for intentional infliction of emotional distress are “(1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe.” Hersh, 526 S.W.3d at 468. “Extreme and outrageous” conduct is a very high standard, requiring conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006)). Zwerneman alleges that “the manner of [Appellants’] actions is [sic] so unusual and absurd that reaches far beyond Texas civil laws and into the Penal Code.” He further alleges that “all of [Appellants’] actions were taken with malice toward [Appellees] and expressed publicly with the clear intent to cause emotional and economic damages . . . .” The only evidence produced by Zwerneman as to each claim are sworn his affidavits asserting the falsity of each of Appellants’ statements and fact rebuttals. Such evidence does not show any degree of emotional distress or that Appellants’ conduct was “extreme and outrageous.” Zwerneman thus failed to establish a prima facie case for this claim. d. Tortious Interference with an Existing Contract and Prospective Business Relations As to the claims for tortious interference with an existing contract and prospective business relations, we conclude that Zwerneman has failed to establish a prima facie case for both. The elements of tortious interference with an existing contract include: “(1) the existence of a valid contract subject to interference; (2) that the defendant willfully and intentionally interfered with the contract; (3) that the 19 interference proximately caused the plaintiff’s injury; and (4) that the plaintiff incurred actual damage or loss.” Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 698 (Tex. 2017). As Zwerneman notes in his brief, the plaintiff must “present evidence that the defendant interfered with a specific contract and that some obligatory provision of the contract has been breached.” SPS Austin, Inc. v. Wilbourn, No. 03-20-00054-CV, 2021 WL 5456659, at *10 (Tex. App.—Austin November 19, 2021, no pet.) (mem. op.) (emphasis added). Zwerneman states in his brief and petition that he “received cancellations of bookings (contracts) from existing clients due to false information intentionally distributed by Appellants.” But the record is devoid of any evidence showing the existence of a specific contract. Merely alleging cancellations of contracts is not enough for a prima facie case. See Wilbourn, 2021 WL 5456659, at *12 (no prima facie case for tortious interference with existing contract claim when statements did not “allege specific individuals or contracts”). A prima facie case for tortious inference with prospective business relations requires Zwernemann to prove that: (1) there was a reasonable