Willard Hood Abercrombie v. Angela Hightower Enterprises, Inc. D/B/A Angela Hightower Income Tax Services

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-20-00139-CV

WILLARD HOOD ABERCROMBIE, APPELLANT

V.

ANGELA HIGHTOWER ENTERPRISES, INC. D/B/A ANGELA HIGHTOWER
INCOME TAX SERVICES, APPELLEE

On Appeal from the County Court at Law No. 3
Lubbock County, Texas
Trial Court No. 2020-575-918, Honorable Ann-Marie Carruth, Presiding

April 19, 2021

MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.

This Texas Citizens Participation Act (TCPA) appeal concerns a suit between

siblings who allegedly had a less than cordial relationship. One, Angela Hightower, was

president of Angela Hightower Enterprises, Inc., (Enterprises), an entity that provided

income tax services to the public. The other, Willard Hood Abercrombie, republished or

reposted on social media (i.e., Facebook) a purported critique of Enterprises personnel

and its fee structure. The post or publication itself is not included in the appellate record,

though it supposedly “accused [Enterprises] . . . of grossly overcharging for its tax
preparation services and calling [its] staff ‘scammers.’” Enterprises sued Willard and

another individual, alleging four causes of action sounding in tortious interference,

business disparagement, and defamation. Willard answered. He also invoked the TCPA

and moved to dismiss the suit. The trial court denied the motion. That resulted in this

appeal wherein Willard contended that the trial court erred in denying his motion. We

reverse and remand.

Preliminarily, we address the impact of Enterprises effectively nonsuiting all but

the claim of business disparagement levied against Willard. Nonsuiting the three other

causes of action occurred when Enterprises amended its original petition to merely levy

the allegation of business disparagement against her brother. So amending the petition

did not bar application of the TCPA to each of the original claims, however. This is so

because a motion to dismiss filed under the TCPA survives a plaintiff’s decision to nonsuit

claims. Nobles v. United States Precious Metals, LLC, No. 09-19-00335-CV, 2020 Tex.

App. LEXIS 2553, at *6 (Tex. App.—Beaumont Mar. 26, 2020, pet. denied) (mem. op.);

Barker v. Hurst, No. 01-17-00838-CV, 2018 Tex. App. LEXIS 4555, at *12–13 (Tex.

App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.); see TEX. R. CIV. P. 162

(stating that a plaintiff’s dismissal of its claims has “no effect on any motion for sanctions,

attorney’s fees or other costs, pending at the time of dismissal, as determined by the

court”). That said, we proceed with the substantive analysis of the appeal and begin by

referring to the standard of review.

The standard we apply and analytical journey in which we engage were recently

discussed in Mesquite Servs., LLC v. Std. E&S, LLC, No. 07-19-00440-CV, 2020 Tex.

App. LEXIS 7485, at *5–7 (Tex. App.—Amarillo Sept. 15, 2020, pet. filed) (mem. op.),

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and Casey v. Stevens, 601 S.W.3d 919, 922–23 (Tex. App.—Amarillo 2020, no pet).

Their reiteration is unnecessary here.

Next, we initially deal with the question of whether Enterprises’ claims were based

on, related to, or in response to “a party’s exercise of the right of free speech, right to

petition, or right of association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (West

2020) (permitting a defendant to seek dismissal of a legal action based on, relating to, or

responding to a party’s exercise of the right of free speech, right to petition, or right of

association). The litigants conceded that they were and that the Act applied.

The TCPA applying to the claims of Enterprises, we now assess whether the entity

established a prima facie case for each. See id. § 27.005(c) (West Supp. 2020) (stating

that the court may not dismiss the legal action if the party bringing it establishes by clear

and specific evidence a prima facie case for each essential element of the claim); Batra

v. Covenant Health Sys., 562 S.W.3d 696, 706–07 (Tex. App.—Amarillo 2018, pet.

denied) (stating that in the second step of the analysis, the burden shifts to the plaintiff to

establish, by clear and specific evidence, a prima facie case for each essential element

of the claim in question). We begin with defamation.

Enterprises accused Willard of engaging in defamation under count four of the

original petition.1 The defamation concerned reference to services being “grossly

overpriced” and its staff being “scammers.” Whether a communication is defamatory or

susceptible to a defamatory meaning is a question of law. See Innovative Block of S.

Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020); W. Mktg. v.

1 See Batra, 562 S.W.3d at 710 (stating that to prove a defamation claim, the complainant must
show the defendant 1) published a false statement of fact to a third party, 2) that defamed the complainant,
3) with the requisite degree of fault, and 4) the statement caused damages, unless the statements were
defamatory per se).
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AEG Petrol., LLC, No. 07-20-00093-CV, 2021 Tex. App. LEXIS 59, at *25 (Tex. App.—

Amarillo Jan. 6, 2021, no pet. h.) (mem. op.). So, we review the matter de novo. See

Bosque Disposal Sys., LLC v. Parker Cty. Appraisal Dist., 555 S.W.3d 92, 94 (Tex. 2018)

(stating that questions of law are reviewed de novo); W. Mktg., 2021 Tex. App. LEXIS 59,

at *25. A statement is defamatory when it is reasonably capable of a defamatory

meaning, that is, a meaning which tends to diminish the plaintiff’s reputation or good

name. See Innovative Block of S. Tex., Ltd., 603 S.W.3d at 418–19. It should be

derogatory, degrading, shocking, and contain an element of disgrace. Harwood v. Gilroy,

No. 04-16-00652-CV, 2017 Tex. App. LEXIS 5931, at *15 (Tex. App.—San Antonio June

28, 2017, no pet.) (mem. op.); Better Bus. Bureau of Metro. Houston, Inc. v. John Moore

Servs., Inc., 441 S.W.3d 345, 355–56 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Unflattering, abusive, annoying, irksome, or embarrassing utterances, or those which only

hurt the plaintiff’s feelings do not qualify. Better Bus. Bureau of Metro. Houston, Inc., 441

S.W.3d at 356. And, whether it is capable of such a meaning depends upon a reasonable

person’s perception of the entire publication, not just the individual statement. Turner v.

KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000); W. Mktg., 2021 Tex. App. LEXIS

59, at *25. So, the context of the statement is pertinent, which, therefore, requires us to

construe the publication as a whole in light of its surrounding circumstances based upon

how a person of ordinary intelligence would perceive it. D Magazine Partners, L.P. v.

Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (quoting Turner, 38 S.W.3d at 114); W.

Mktg., 2021 Tex. App. LEXIS 59, at *25–26. In short, context is pivotal because a

statement may be false, abusive, unpleasant, or objectionable without being defamatory,

given its context or surrounding circumstances. See Am. Heritage Capital, LP v.

Gonzalez, 436 S.W.3d 865, 875 (Tex. App.—Dallas 2014, no pet.).

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 To be actionable, the utterance also must involve a statement of objectively

verifiable fact, as opposed to an opinion. Maldonado v. Franklin, No. 04-18-00819-CV,

2019 Tex. App. LEXIS 8747, at *28 (Tex. App.—San Antonio Sept. 30, 2019, no pet.)

(mem. op.). Whether it is one or the other similarly depends on the entire context in which

it was made. See id.; Am. Heritage Capital, LP, 435 S.W.3d at 875. And, resolution of

this too is a question of law. See Maldonado, 2019 Tex. App. LEXIS 8747, at *28.

Here, the complete social media post is missing from the record. All we have are

excerpts from it. They appeared in Angela Hightower’s affidavit and consisted of the

phrase “grossly overcharging” and the word “scammers.”2 But, again, their context (i.e.,

the complete post with all its words) was omitted from the affidavit. Nor was it included

in any pleading or other bit of evidence. Without that context, we cannot determine

whether the statements were verifiable fact or opinion. The situation also prevents us

from testing whether a reasonable person would perceive “grossly overcharging” and

“scammers” as defamatory.

In short, Enterprises forced the trial court and us to do that prohibited by Turner.

It placed us in the position of assessing both the defamatory nature of the purported

utterance and its status as fact or opinion though the lens of the individual word and

phrase found objectionable, not through that of the entire publication. Consequently, the

bit of evidence proffered denies us the ability to conduct the requisite analysis, which

means it also falls short of the quantum of evidence needed to satisfy the burden

mandated under § 27.005(c) of the TCPA.

2 Reference to “grossly overpriced,” as opposed to “grossly overcharging,” appeared in the original
petition. Given the absence of the post itself, we do not know which phrase was actually used.
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 The missing contextual evidence described above also affects other claims of

Enterprises. For instance, the existence of a defamatory statement is also elemental to

the claim of business disparagement. Rehak Creative Servs. v. Witt, 404 S.W.3d 716,

728 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). One is needed to prove it. Id.;

Am. Energy Servs., Inc. v. Union Pac. Res. Co., No. 01-98-01264-CV, 2001 Tex. App.

LEXIS 5543, at *26 (Tex. App.—Houston [1st Dist.] Aug. 16, 2001, no pet.) (mem. op.);

accord Delta Air Lines v. Norris, 949 S.W.2d 422, 427 (Tex. App.—Waco 1997, writ

denied) (observing that non-defamatory statements do not support a claim of business

disparagement). So, to the extent that Enterprises failed to illustrate the purported slurs

at issue were false and defamatory for purposes of its defamation claim, it did so as well

for purposes of business disparagement.

As for the remaining causes of action, we first consider the allegation of tortious

interference with prospective business relationships. It requires proof that the defendant’s

conduct was independently tortious or unlawful. Coinmach Corp. v. Aspenwood

Apartment Corp., 417 S.W.3d 909, 923 (Tex. 2013); W. Mktg., 2021 Tex. App. LEXIS 59,

at *32–33. The independently tortious conduct in which Willard engaged consisted of

“business disparagement and/or defamation,” according to Enterprises. In other words,

his purportedly defaming and disparaging the business allegedly satisfied the element in

question. Yet, as discussed above, the complainant did not establish a prima facie case

on those causes of action; that means it also failed to present sufficient evidence of the

independent torts underlying its claim of interfering with prospective business

relationships.

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 Tortious interference with existing contracts is the final cause of action involved

here. Unlike its cousin discussed in the preceding paragraph, it does not require proof of

an independent tort. See El Paso Healthcare Sys. v. Murphy, 518 S.W.3d 412, 421 (Tex.

2017). Nevertheless, it does require proof of conduct causing one to breach an existing

contract with the complainant. Id. at 421–22; W. Mktg., 2021 Tex. App. LEXIS 59, at *30–

31. Enterprises proffered evidence of lost clientele allegedly due to Willard’s republication

of the utterances in question. It, however, cited us to no evidence of any lost client

actually breaching an existing contract with Enterprises because of Willard’s conduct. It

is one thing for past clients to return because they liked the services offered by

Enterprises. It is another thing for clients to return because a contract obligated them to

do so. If such a contract existed, it was breached when the client failed to return, and

Willard’s conduct caused that breach, then there may be evidence of tortious interference

with existing contracts. But without being contractually obligated to return, a client’s

decision to seek tax services elsewhere is not the breach elemental to the claim at hand.

And, again, we were neither cited to nor did we find evidence of such contracts being

breached due to Willard’s conduct.

In sum, we sustain Willard’s contention that the trial court erred in denying his

TCPA motion to dismiss. Consequently, the trial court’s ruling is reversed, and we

dismiss, with prejudice, the legal action initiated by Enterprises against him. The action

is not dismissed with regard to other defendants, however. Finally, we remand the

dismissed cause to the trial court for its consideration of attorney’s fees, costs, and

sanctions pursuant to § 27.009(a) of the Texas Civil Practice and Remedies Code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West 2020) (stating that when the court

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orders dismissal of a legal action under this chapter, it shall award to the moving party

court costs and reasonable attorney’s fees incurred in defending against the legal action

and may award sanctions to the moving party).

Brian Quinn
Chief Justice

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