Liat Zilkha-Shohamy and Tal Shohamy v. Lenore Vincent Corazza

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00380-CV

Liat Zilkha-Shohamy and Tal Shohamy, Appellants

v.

Lenore Vincent Corazza, Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-006883, THE HONORABLE DON R. BURGESS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants Liat Zilkha-Shohamy and Tal Shohamy appeal from the district

court’s order denying their motion to dismiss under the Texas Citizens Participation Act

(“TCPA”). See Tex. Civ. Prac. & Rem. Code § 27.003.1 In two issues on appeal, they assert that

the district court erred in denying the motion to dismiss because (1) appellee Lenore Vincent

Corazza failed to provide clear and specific evidence to support each essential element of a

prima facie case of defamation; and (2) appellants established by a preponderance of the

evidence each essential element of a valid defense to defamation. We will affirm the district

court’s order.

1
The TCPA was amended in the 2019 legislative session, but those amendments do not
apply to this lawsuit, which was filed in 2018. See Act of May 17, 2019, 86th Leg., R.S., ch. 378,
§§ 11, 12, 2019 Tex. Gen. Laws 684, 687 (amendments to TCPA apply “only to an action filed
on or after” September 1, 2019). All references to the TCPA are to the version in existence at
the time this suit was filed.
 BACKGROUND

Corazza was the former office manager for White Angel Animal Hospital, a

veterinary clinic owned by Liat Zilkha-Shohamy and operated by Zilkha-Shohamy’s husband,

Tal Shohamy. Corazza’s employment with the clinic ended on August 15, 2017.

In November 2018, Corazza sued appellants for defamation, alleging that on or

about August 31, 2017, Shohamy “sent an email with false statements accusing [Corazza] of

fraudulent schemes that included embezzlement from the practice.” According to the allegations

in Corazza’s petition, “These false allegations of fraudulent schemes were widely made known

among multiple clients and others” by appellants and that “[a]s a result of the false allegations,

[Corazza] has been subjected to undue strict scrutiny” and “was terminated from subsequent

employment because of the continuous attack[s] made by [appellants] to her new place of

employment.” Corazza alleged that the false statements “constitute defamation per se because

they accuse [Corazza] of engaging in illegal activity and/or they directly bear on her fitness as a

manager and employee.” She further alleged that the statements were “defamatory because they

tend to injure [Corazza]’s reputation in the veterinary community and expose her to public

hatred, contempt, ridicule, and financial injury, and impeach her honesty and integrity.” Corazza

added that appellants “published the defamatory statements (calling Plaintiff a thief) with the

knowledge that they were false or with substantial grounds for knowing that they might be false

and with reckless disregard to whether they were true or false. These defamatory remarks were

made, both spoken and in writing, to others who knew Plaintiff.”

Appellants filed a motion to dismiss the suit pursuant to the TCPA. In the

motion, appellants asserted that the allegedly false statements were protected by the TCPA as an

exercise of their free-speech rights, “were true and/or substantially true when published and/or

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[they] had a reasonable and good faith basis to believe such statements were true at the time

of publication and in the manner published,” “were opinions and/or a fair comment upon the

underlying facts,” and “were neither negligent, nor uttered with malice.”

The district court held an evidentiary hearing on the motion to dismiss. Corazza

was the sole witness to testify at the hearing. Corazza testified that she began working for the

clinic in March 2014. When asked to describe the end of her employment, Corazza testified

that she had decided to leave the clinic in August 2017 after she began having disagreements

with Shohamy regarding some of his business decisions. Before Corazza quit, she had received

a call from Zilkha-Shohamy, who “sounded distraught” and “said that there was [a] dollar

raise” to Corazza’s salary. Corazza testified that she told Zilkha-Shohamy, “Yeah, I know,

that’s something we had talked about—.”2 The next day, Corazza gave the clinic her two weeks’

notice but was told that her employment with the clinic was terminated effective immediately.

Corazza testified that after her employment with the clinic ended, appellants told

“multiple individuals” that Corazza had lied and stolen money from the clinic. When asked how

this affected her reputation in the veterinary community, Corazza testified that she was hired by

Bee Cave Veterinary Clinic in September 2017 but was fired in November 2017 when appellants

filed a criminal theft charge against her and sued Corazza and her employer for stealing clients

from appellants’ clinic. Corazza was not able to find another job until September 2018, after

the theft charge against her was dismissed. She testified that her current employer “just took a

chance” on Corazza because “he was told by doctors in the community” that Corazza “was a

2
Before Corazza could complete her sentence, counsel for appellants objected to hearsay.
Although the district court overruled the objection, there was no further testimony elicited
regarding the increase to Corazza’s salary.
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thief,” and that Corazza had to “explain everything to [her] new staff.” Corazza denied stealing

anything from the clinic or appellants.

Dr. Jennifer Barker, a veterinarian formerly employed at appellants’ clinic,

provided an affidavit in which she explained that after she had been fired from the clinic, she

learned that Corazza “ha[d] been fired for theft.” She explained that the clinic “issued a very in-

depth email that they sent out to all on their email list, dealing [with] why [Corazza] was fired

and that nobody should listen to anything she has to say about the situation.” Bonnie Threewit, a

former employee at appellants’ clinic, provided an affidavit in which she averred that after she

had left the clinic, she “received an email regarding [Corazza] having stolen from the company.”

Stephanie Foster, a former employee at the Bee Cave Veterinary Clinic, provided an affidavit in

which she stated that she had “personally witness[ed]” Shohamy make “false allegations” against

Corazza, although she did not explain the nature of the allegations.

Evidence submitted by appellants included a copy of the August 31, 2017 email

that Corazza alleged was defamatory. The email, in its entirety, reads as follows:

Good Afternoon White Angel Animal Hospital Family,

We would like to inform our clients of a change in management at White Angel
Animal Hospital. Due to financial discrepancies recently noted, Lenore is no
longer employed with us.

It has come to our attention that Lenore has communicated with several of the
valued rescue groups and/or clients which we serve regarding our ability or
willingness to continue the relationship. This is inaccurate and not a reflection of
our values or intentions. Please disregard any communications that you receive
from her in association with White Angel Animal Hospital as of August 15, 2017.
We sincerely apologize for any inconvenience or hurt feelings that this may have
caused to our valued clients and animal welfare groups. We want you to know
that we appreciate your patience and loyalty during this difficult time as always.

We will miss Lenore and we wish her the best of luck in her future endeavors!

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 If you have any questions or concerns, please feel free to give us a call. Dr.
Zilkha will continue to be the primary veterinary practitioner at White Angel. Ali
[Nelson, Corazza’s replacement,] will be managing the hospital and will be more
than happy to speak with anyone who needs assistance.

Sincerely,

Your Family at White Angel Animal Hospital

Other evidence presented by appellants included an affidavit by Zilkha-Shohamy,

who explained her view of the circumstances surrounding Corazza’s termination:

I was absolutely devastated to learn in August 2017 of a discrepancy with regard
to Lenore’s payroll account. I discovered from our HR payroll processor, Hill
Country Payroll, that Lenore had increased her pay rate from $18 an hour to $19
an hour without authorization from me. Lenore’s responses to me regarding the
matter were unsatisfactory and defensive. After reviewing White Angel, PLLC’s
practice accounts, I also discovered further instances of abuse of the practice’s
business accounts which included an unauthorized discount of clinic services and
the use of White Angel’s business account to make a personal order for dog food.
On or about August 15, 2017, I had to make the difficult decision to terminate
Lenore Corazza from White Angel, PLLC.

Writ Baese, an employee with Hill Country Payroll, provided an affidavit in which he confirmed

that “on or about July 31, 2017, Lenore V. Corazza, as the authorized payroll contact for White

Angel, submitted a payroll worksheet to Hill Country Payroll that changed her pay rate from $18

an hour to $19 an hour.”

Zilkha-Shohamy further averred that Corazza had “refused to cooperate” with the

clinic’s end-of-employment policies and had interfered with the clinic’s business relationships

by sending unauthorized emails to the clinic’s clients. It was this interference, Zilkha-Shohamy

explained, that prompted the email to the clinic’s clients regarding Corazza’s departure. Ali

Nelson, the clinic’s office manager after Corazza, provided an affidavit in which she explained

that she had discovered that Corazza had sent unauthorized emails to clients of the clinic and

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engaged in other behavior that was harmful to the clinic. Shohamy provided an affidavit in

which he averred that “Corazza sent emails to White Angel clients claiming the clinic was

discontinuing its relationship with the clients” and explained that “[i]t became necessary for

White Angel to address this problem by sending a statement to White Angel Animal Hospital

clients setting the record straight regarding Lenore Corazza’s termination and her unauthorized

access to White Angel’s email accounts.” He also denied personally sending the email to the

clients but acknowledged that the clinic did so.

At the conclusion of the hearing, the district court denied appellants’ motion to

dismiss. This interlocutory appeal followed. See id. § 51.014(a)(12).

TCPA FRAMEWORK AND STANDARD OF REVIEW

“The Legislature enacted the TCPA ‘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.’” In re Panchakarla,

602 S.W.3d 536, 538 (Tex. 2020) (orig. proceeding) (quoting Tex. Civ. Prac. & Rem. Code

§ 27.002). To accomplish this, the TCPA authorizes “expedited consideration of any suit that

appears to stifle the [movant]’s communication on a matter of public concern.” Id. (quoting

In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding)). Thus, “[i]f a legal action is

based on, relates to, or is in response to a party’s exercise of the right of free speech, right

to petition, or right of association, that party may file a motion to dismiss the legal action.”

Tex. Civ. Prac. & Rem. Code § 27.003.

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 “The statute requires a three-step decisional process.” Creative Oil & Gas, LLC

v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019). “First, the party moving for

dismissal must show, by a preponderance of the evidence, that the ‘legal action is based on,

relates to, or is in response to a [movant]’s exercise of the right of free speech.’” Dallas Morning

News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019) (quoting Tex. Civ. Prac. & Rem. Code

§ 27.003(a)). Second, “[t]he burden then shifts to the plaintiff to establish ‘by clear and specific

evidence a prima facie case for each essential element of the claim in question.’” Id. (quoting

Tex. Civ. Prac. & Rem. Code § 27.005(c)). Third, the TCPA “requires a court to dismiss the

legal action if ‘the moving party establishes by a preponderance of the evidence each essential

element of a valid defense to the nonmovant’s claim.’” Id. (quoting Tex. Civ. Prac. & Rem.

Code § 27.005(d)). “If the plaintiff fails to carry [her] burden—or if the movant establishes the

essential elements of a valid defense under section 27.005(d)—the trial court must dismiss the

suit.” Id. at 377.

“In deciding if dismissal is warranted, we consider all the ‘pleadings and

supporting and opposing affidavits stating the facts on which the liability or defense is based.’”

Id. (quoting Tex. Civ. Prac. & Rem. Code § 27.006(a)). Whether the parties met or failed to

meet their burdens of proof under the TCPA is a question of law that we review de novo. See id.

“We also review de novo, under the TCPA, ‘whether a nonmovant has presented clear and

specific evidence establishing a prima facie case for each essential element of the challenged

claims.’” Landry’s, Inc. v. Animal Legal Defense Fund, ___ S.W.3d ___, 2021 WL 2021130,

at *2 (Tex. May 21, 2021) (quoting Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin

2015, no pet.)).

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 “The words ‘clear’ and ‘specific’ in the context of [the TCPA] have been

interpreted respectively to mean, for the former, ‘“unambiguous,” “sure,” or “free from doubt”’

and, for the latter, ‘“explicit”’ or ‘“relating to a particular named thing.””’ Lipsky, 460 S.W.3d

at 590 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston

[1st Dist.] 2013, pet. denied)). A prima facie case “refers to evidence sufficient as a matter of

law to establish a given fact if it is not rebutted or contradicted.” Id. “It is the ‘minimum

quantum of evidence necessary to support a rational inference that the allegation of fact is true.’”

Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig.

proceeding) (per curiam)). A court may not dismiss a legal action if the nonmovant establishes

“a prima facie case for each essential element of the claim in question” unless the movant

establishes “by a preponderance of the evidence each essential element of a valid defense to the

nonmovant’s claim.” Tex. Civ. Prac. & Rem. Code § 27.005(c), (d). In determining whether the

nonmovant has met this burden, the court views the evidence in the light most favorable to the

nonmovant. Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 801 (Tex. App.—Austin

2017), aff’d, 611 S.W.3d 1 (Tex. 2020).

DISCUSSION

Prima Facie Case for Defamation

Corazza does not dispute that appellants satisfied their initial burden to show that

her legal action is subject to the TCPA. Thus, under the decisional framework summarized

above, the burden shifted to Corazza to present clear and specific evidence establishing a

prima facie case for each essential element of the challenged claim of defamation. See Hall,

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579 S.W.3d at 377 (citing Tex. Civ. Prac. & Rem. Code § 27.005(c)). In their first issue,

appellants assert that Corazza failed to meet that burden.

Defamation occurs when: “(1) the defendant published a false statement; (2) that

defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement

(negligence if the plaintiff is a private individual); and (4) damages (unless the statement

constitutes defamation per se).” D Mag. Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434

(Tex. 2017) (citing Lipsky, 460 S.W.3d at 593; WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568,

571 (Tex. 1998)). “Defamation per se refers to statements that are so obviously harmful

that general damages, such as mental anguish and loss of reputation, are presumed.” Lipsky,

460 S.W.3d at 596.

The first element, falsity, is presumed in cases involving private plaintiffs suing

nonmedia defendants. See Fawcett v. Grosu, 498 S.W.3d 650, 660–61 (Tex. App.—Houston

[14th Dist.] 2016, pet denied) (op. on reh’g); see also Texas Jewelers Ass’n v. Glynn, No. 03-17-

00771-CV, 2018 WL 5305721, at *4 n.6 (Tex. App.—Austin Oct. 26, 2018, no pet.) (mem. op.).

The second element, that the statements defamed the plaintiff, is also satisfied here. Appellants

sent an email to their clients informing them that Corazza was no longer employed with the

clinic “[d]ue to financial discrepancies recently noted.” Because the email provided no details,

the clients could draw their own conclusions regarding the nature of the “financial

discrepancies,” which could have been anything ranging from financial mismanagement to theft.

However, because the email cited the financial discrepancies as the reason why Corazza had

been fired from the clinic, the clinic’s clients likely inferred that the issue was serious and that,

even if Corazza had committed an act other than theft, the discrepancies nevertheless reflected

negatively on Corazza’s professional abilities as an office manager and employee. Additionally,

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the email also accused Corazza of sending communications to clinic clients that were “inaccurate

and not a reflection of [the clinic’s] values or intentions.” From this statement, the clinic’s

clients could have further inferred that Corazza was dishonest, thus making it more likely that the

financial discrepancies that the clinic accused her of committing were serious. We conclude that

the email provides clear and specific evidence that appellants made statements that were

defamatory per se. See id. (observing that “[a]ccusing someone of a crime” or making “remarks

that adversely reflect on a person’s fitness to conduct his or her business or trade” are considered

defamatory per se); see also Glynn, 2018 WL 5305721, at *5 (concluding that statements

accusing plaintiff of theft or misappropriation of funds qualified as defamation per se). Thus,

Corazza did not have to present clear and specific evidence of the element of damages. See

Lipsky, 460 S.W.3d at 596.

The final element of Corazza’s prima facie case is appellants’ degree of fault.

Because Corazza is a private figure suing a nonmedia defendant, she must provide clear and

specific evidence merely that appellants acted with negligence. See id. at 593; Hancock v.

Variyam, 400 S.W.3d 59, 65 n.7 (Tex. 2013). “Texas courts have defined negligence in the

defamation context as the ‘failure to investigate the truth or falsity of a statement before

publication, and [the] failure to act as a reasonably prudent [person].’” Fawcett v. Rogers,

492 S.W.3d 18, 27 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (alterations in original)

(quoting Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 85 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied)); see Hoskins v. Fuchs, 517 S.W.3d 834, 843 (Tex.

App.—Fort Worth 2016, pet. denied).

Here, the primary basis of the “financial discrepancies” referenced in the email

was Corazza’s increasing her salary from $18 to $19 per hour. Corazza testified that when

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Zilkha-Shohamy confronted her about the “dollar raise,” Corazza told her that they had “talked

about” it. Although no further testimony on this matter was elicited, this testimony, when

viewed in the light most favorable to Corazza, provides at least some evidence that the salary

increase was authorized. If appellants had authorized the salary increase, or if they knew that

they had given Corazza reason to believe that the salary increase was authorized, then it

would have been at least negligent for appellants to send their clients an email accusing Corazza

of “financial discrepancies” based on that salary increase. See Van Der Linden v. Khan,

535 S.W.3d 179, 200–02 (Tex. App.—Fort Worth 2017, pet. denied) (explaining that evidence

that defendant knew statement was false can also serve as evidence that defendant was at least

negligent in making statement). We conclude that on this record, Corazza has satisfied her

burden to establish a prima facie case for defamation.

We overrule appellants’ first issue.

Defenses

In their second issue, appellants assert that they are entitled to dismissal because

they established by a preponderance of the evidence each of the essential elements of their

defenses to defamation. Specifically, appellants claim that they established the defenses of fair

comment upon the underlying facts, opinion, and truth.3

3
Appellants also assert, for the first time on appeal, that Corazza’s claims are barred by
the statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.002(a) (providing that “[a]
person must bring suit for [defamation] not later than one year after the day the cause of action
accrues”). However, the statute of limitations is an affirmative defense that must be pleaded and
proven in the trial court. See Tex. R. Civ. P. 94; Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d
143, 155 (Tex. 2015); Zavala v. Franco, 622 S.W.3d 612, 619 (Tex. App.—El Paso 2021, no
pet. h.). Because appellants did not plead limitations in the court below, that defense has been
waived. See Fawcett v. Grosu, 498 S.W.3d 650, 663 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied) (op. on reh’g).
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 Fair comment privilege

“The fair comment privilege is an affirmative defense to a defamation action

extending to publications that are ‘reasonable and fair comment[s] on or criticism[s] of . . .

matter[s] of public concern published for general information.’” Rosenthal, 529 S.W.3d at 434

(quoting Tex. Civ. Prac. & Rem. Code § 73.002(a), (b)(2)). However, the defense is inapplicable

to nonmedia defendants such as appellants here. See Casso v. Brand, 776 S.W.2d 551, 554 (Tex.

1989); see also Neely v. Wilson, 418 S.W.3d 52, 56 (Tex. 2013) (listing fair comment privilege

as defense available to media defendants). Accordingly, appellants would not be entitled to

dismissal based on this defense.

Opinion

“[S]tatements that cannot be verified, as well as statements that cannot be

understood to convey a verifiable fact, are opinions.” Dallas Morning News, Inc. v. Tatum,

554 S.W.3d 614, 639 (Tex. 2018). “[S]tatements that are not verifiable as false cannot form the

basis of a defamation claim.” Neely, 418 S.W.3d at 62. Whether Corazza was fired “[d]ue to

financial discrepancies recently noted” can be verified as either true or false based on the

evidence presented and thus is not an opinion. See Bentley v. Bunton, 94 S.W.3d 561, 583–84

(Tex. 2002). Accordingly, appellants would not be entitled to dismissal based on this defense.

Truth

“Truth is a defense to all defamation suits.” Neely, 418 S.W.3d at 56. Under this

defense, the defendant is required to prove that the statement is “substantially true.” Id. at 62.

“Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the

libelous charge be justified.’” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991). In

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other words, “the substantial truth doctrine precludes liability for a publication that correctly

conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Turner v. KTRK Television,

Inc., 38 S.W.3d 103, 115 (Tex. 2000); see McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.

1990). Conversely, a publication may contain statements that are correct but “nevertheless convey

a substantially false and defamatory impression by omitting material facts or suggestively

juxtaposing true facts.” Turner, 38 S.W.3d at 115; see also Huckabee v. Time Warner Ent. Co.,

19 S.W.3d 413, 425 (Tex. 2000) (“A broadcaster’s omission of facts may be actionable if it so

distorts the viewers’ perception that they receive a substantially false impression of the event.”).

We are to construe the publication “as a whole in light of the surrounding circumstances

based upon how a person of ordinary intelligence would perceive it.” Turner, 38 S.W.3d at 114.

“Consistent with this approach, under the ‘substantial truth doctrine’ a publication’s truth or

falsity depends on whether the publication ‘taken as a whole is more damaging to the plaintiff’s

reputation than a truthful [publication] would have been.’” Rosenthal, 529 S.W.3d at 434

(quoting KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016)).

As discussed above, the email stated that Corazza was “no longer employed” with

the clinic “[d]ue to financial discrepancies recently noted.” The email did not specify the nature

of the financial discrepancies, but a person of ordinary intelligence would likely conclude that

the discrepancies were serious enough to warrant Corazza’s termination from the clinic.

Moreover, because the same email also accused Corazza of sending communications to clinic

clients that were “inaccurate and not a reflection of [the clinic’s] values or intentions,” a

person of ordinary intelligence would likely conclude that appellants believed Corazza to be

dishonest, which would cast the unspecified “financial discrepancies” in an even more negative

and serious light.

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 However, based on the evidence presented, the truth was more complicated than

the email implied. Corazza testified that before she was fired, she had decided to leave the clinic

due to disagreements that she had with Shohamy regarding business decisions that he had made.

On the same day that she gave the clinic her two weeks’ notice, she was told that she was fired

effective immediately, purportedly because of a “dollar raise” that Zilkha-Shohamy claimed

was not authorized but that Corazza claimed they had “talked about” earlier. The email did not

include any of these details, which would have provided important context to the unspecified

“financial discrepancies” that appellants had accused Corazza of committing. Based on the

limited evidence before us, we cannot conclude that the email is as or less damaging to

Corazza’s reputation than a truthful publication would have been. Accordingly, appellants failed

to prove by a preponderance of the evidence that the email was “substantially true” so as to

entitle them to dismissal under the TCPA.

We overrule appellants’ second issue.

CONCLUSION

We affirm the district court’s order denying appellants’ motion to dismiss.

__________________________________________
Gisela D. Triana, Justice

Before Justices Goodwin, Triana, and Smith

Affirmed

Filed: July 16, 2021

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