Heavenly Homes of South Texas, LLC and Michael J. McCarthy v. Infinity Custom Construction, LLC

NUMBER 13-21-00298-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HEAVENLY HOMES OF SOUTH TEXAS, LLC
AND MICHAEL J. MCCARTHY, Appellants,

v.

INFINITY CUSTOM CONSTRUCTION, LLC, Appellee.

On appeal from the County Court at Law No. 6
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras

In this appeal, appellants Heavenly Homes of South Texas, LLC (HHST) and

Michael J. McCarthy contest the trial court’s denial of their motion to dismiss a suit brought

by appellee Infinity Custom Construction, LLC (Infinity). By a single issue, appellants

argue the suit should have been dismissed under the Texas Citizens Participation Act
(TCPA). We affirm in part and reverse and remand in part.

I. BACKGROUND

McCarthy worked for Infinity, a residential construction firm, between 2017 and

2018. Alleging that Infinity failed to pay him more than $96,000 in earned commissions,

McCarthy filed a wage claim with the Texas Workforce Commission (TWC) in 2019. See

TEX. LAB. CODE ANN. § 51.051. 1

Infinity filed the instant suit against McCarthy and HHST on March 9, 2021, alleging

that McCarthy “knowingly filed a false complaint with the [TWC]” and “publish[ed] false

and misleading information to current and prospective clients of [Infinity].” More

specifically, Infinity alleged that McCarthy forged the signature of Infinity representative

Eddie Garza on a “commission payout schedule” which he submitted with his wage claim.

Further, Infinity alleged that McCarthy sent text messages to “prospective and/or current

clients of [Infinity]” which contained “lies associated with [Infinity’s] business practices” in

an attempt to “disparage [Infinity]’s business reputation” and to steal Infinity’s clients. The

petition alleged causes of action of tortious interference with contract, tortious interference

with prospective business relations, business disparagement, and defamation. McCarthy

and HHST answered the suit and raised various affirmative defenses.

In an amended petition filed on June 24, 2021, Infinity added an allegation that

McCarthy “went out of his way to solicit individuals to knowingly leave false and

misleading review[s] on Facebook.” The amended petition added a cause of action for

common law fraud; further, it alleged that HHST was McCarthy’s alter ego and that the

two defendants constituted a joint enterprise for purposes of liability. It also included the

1 The record does not reflect the outcome of the wage claim proceedings.

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following exhibits, among others: (1) copies of messages allegedly sent by McCarthy to

Infinity customers 2; (2) a copy of a completed wage claim form allegedly filed by McCarthy

with the TWC3; and (3) a police report reflecting that Garza reported that Infinity was the

victim of forgery.

On June 30, 2021, appellants filed an “Anti-SLAPP Motion to Dismiss” under the

TCPA, arguing that Infinity’s suit implicates their rights to freedom of speech and to

petition and that Infinity cannot produce clear and specific evidence to support a prima

facie case or to rebut their affirmative defenses. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(b). The motion requested dismissal of the suit as well as attorney’s fees and

sanctions. Infinity filed a response in which it argued that the TCPA does not apply to its

suit because McCarthy’s allegedly actionable statements constitute “commercial speech.”

See id. § 27.010(a)(2). Infinity also alleged that, even if the TCPA applied, dismissal

would be improper because it produced clear and specific evidence of a prima facie case

and because appellants failed to establish any of their affirmative defenses. Infinity

attached to its response an unsworn declaration by Garza, who stated in relevant part:

2 One of the messages stated:
[Infinity is] the worst company you can build with! I worked with them for 2 1/2 years and
they cut corners big time! Plus they will hit with so many change orders at the end you’ll
end up paying over $80 a square foot.
If you’re still designing the home it’s not too late to back out.
I can show you change order for $13K at the end of construction on top of what they already
paid for. They don’t include spray foam insulation standard, they don’t build with Hebel
unless it’s an upgrade, they build 9’ wall plate instead of 10’ I can go on and on about how
they cut corners and charge more but give you less.
I can give 5-10 customers[’] cell phone numbers and you can ask if they had a good
experience building their home with Infinity and I’ll give you my customers[’] numbers and
you’ll see the difference.
3The form stated in part: “I will provide a commission pay out schedule of what was owed.”
However, the “pay out schedule,” which Infinity alleges contains a forged signature, does not appear in the
record.

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4. I am familiar with the facts and circumstances surrounding Michael
McCarthy’s statements made basis of this lawsuit to both current and
prospective clients of [Infinity].

5. McCarthy was previously employed with [Infinity] for roughly two (2)
years prior to his termination. McCarthy’s role was done as an
independent contractor and included facilitating sales for [Infinity]
and increasing production via getting prospective homebuyers under
contract.

6. McCarthy was privy to information as to how [Infinity] worked that
individuals outside of [Infinity] would not know, including cost per
square foot, specific building practices, and contract negotiations in
general.

7. The statements made by McCarthy associated with [Infinity]’s
business practices in the residential construction industry are not
true. McCarthy knew that at least one of the individuals he was
contacting was a current or prospective client of making false
representations associated with [Infinity] [sic].

8. On at least one occasion, McCarthy and [HHST] took a client from
[Infinity], Mr. Murad Moqbel being one of those clients. I personally
exchanged the text messages with Mr. Moqbel, and the same is
attached to Plaintiff’s Response to Defendants Anti-SLAPP Motion
to Dismiss as Exhibit A.[ 4] [Infinity] would have profited between
$40,000 and $50,000 had Mr. Murad Moqbel not been convinced to
build with HHST over [Infinity]. [Infinity] lost profits as a result of
McCarthy’s interference with Mr. Moqbel.

9. On at least one occasion, current and/or prospective clients of
[Infinity] approached me concerned about the statements McCarthy
made regarding [Infinity]’s business practices, and requested to meet
with me regarding whether they would be willing to remain under
contract, or proceed with going under contract for the build of a
residence. On at least one occasion, I personally had to meet with
said clients to reassure them that the building project would be
handled as McCarthy represented, that the information McCarthy

4 The text message from Moqbel to Garza states:
Hi Eddie, I hope all is well with you. Please see the positive review I posted about you last
year which has already more than 1000 views. Anyways, last year Mike McCarthy, your
ex-employee, convinced me to go with him as he said he would charge me 67 dollars per
square feet [sic] including Hebel board and foam insulation. However, later on he started
to appear not as transparent as he initially appeared. My wife and I also decided to
postpone the building idea and not go with him. Now, we are ready to build and I would like
to check with you if you are interested in building for us the same blueprint from last year.
If so, please let me know how much you will charge per square feet [sic]. Thanks a lot!

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 provided was taken out of context, and the statements were wholly
false.

10. [Infinity] representatives demanded that McCarthy and HHST retract
their statements made that are associated with [Infinity] from the
medium they were posted more than 90 days prior to [Infinity] filing
this lawsuit.

11. The average profit [Infinity] makes for completed/closed construction
projects is between $40,000 and $50,000, depending on the floor
plan, upgrades selected by the buyer, and market costs.

12. The signature used to support McCarthy’s claim for wages to the
[TWC Labor Law Section] signed on the document described as an
employment agreement was not signed by myself, and the signature
is not an authentic representation of my signature.

Appellants filed a reply to Infinity’s response in which they objected to Garza’s unsworn

declaration on grounds that: (1) it did not contain Garza’s date of birth or address, as is

generally required for unsworn declarations, see id. § 132.001(d); (2) it was not based on

Garza’s personal knowledge; and (3) it was conclusory. The record contains no ruling on

the objections.

After a hearing on July 29, 2021, appellants’ motion was denied by operation of

law. 5 See id. §§ 27.005(a), 27.008(a). Appellants filed their notice of accelerated appeal

on September 16, 2021. See id. § 51.014(a)(12). Later that day, the trial court signed a

written order finding that the motion to dismiss “was frivolous or solely intended to delay”

and denying the motion, but awarding zero attorney’s fees and court costs to appellees.

See id. § 27.009(b); TEX. R. APP. P. 27.3 (“After an order or judgment in a civil case has

been appealed, if the trial court modifies the order or judgment, or if the trial court vacates

the order or judgment and replaces it with another appealable order or judgment, the

5 At the hearing, the trial court heard live testimony from Garza and Mario Pena, a co-owner of
Infinity, over the objection of appellants’ counsel. For the reasons discussed herein, we do not consider the
testimony in our analysis.

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appellate court must treat the appeal as from the subsequent order or judgment . . . .”).

Appellants then filed an amended notice of appeal.

II. DISCUSSION

A. Applicable Law and Standard of Review

The TCPA is intended to “protect[] citizens from retaliatory lawsuits that seek to

intimidate or silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579,

586 (Tex. 2015) (orig. proceeding). The statute was first enacted in 2011 but has been

repeatedly and substantially amended in recent years. Our review in this case is

hampered by appellants’ failure to consistently cite or apply the correct version of the law.

Under the applicable version of the statute, 6 a party seeking dismissal has the

initial burden to show that the “legal action is based on or is in response to . . . the party’s

exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of

association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1). If the defendant meets its

initial burden, then the plaintiff must establish by “clear and specific evidence a prima

facie case for each essential element of the claim in question” to avoid dismissal. Id.

§ 27.005(c). Even if the plaintiff makes this showing, the trial court must nevertheless

dismiss the action if the defendant “establishes an affirmative defense or other grounds

on which the [defendant] is entitled to judgment as a matter of law.” Id. § 27.005(d).

Dismissal under the TCPA is determined on a claim-by-claim basis. Union Pac.

R.R. Co. v. Dorsey, __ S.W.3d __, __, No. 14-20-00308-CV, 2022 WL 1789813, at *2

(Tex. App.—Houston [14th Dist.] June 2, 2022, no pet. h.) (op. on reh’g). Our review of a

6 The current version of the TCPA applies to all suits, such as this one, filed on or after September

1, 2019. See Act of May 20, 2019, 86th Leg., R.S., ch. 378, §§ 11, 12, 2019 Tex. Gen. Laws 684.

6
ruling on a TCPA motion to dismiss is de novo. Entravision Commc’ns Corp. v. Salinas,

487 S.W.3d 276, 281 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied); Hicks v.

Grp. & Pension Adm’rs, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi–Edinburg

2015, no pet.), abrogated on other grounds by Montelongo v. Abrea, 622 S.W.3d 290

(Tex. 2021).

B. TCPA Applicability

We first address whether the TCPA applies to this suit. According to our review of

the live pleadings, Infinity’s various causes of action are based on three distinct factual

allegations: (1) McCarthy “knowingly filed a false complaint with the [TWC]” in connection

with his wage claim; (2) McCarthy sent text messages to “prospective and/or current

clients of [Infinity]” which contained “lies associated with [Infinity’s] business practices”;

and (3) McCarthy “solicit[ed] individuals” to “leave false and misleading review[s] on

Facebook.”

Infinity does not dispute that its claims are “based on” or “in response to”

McCarthy’s exercise of a protected constitutional right. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.001(3) (defining “exercise of the right of free speech” as “a communication

made in connection with a matter of public concern”); id. § 27.001(7) (defining “matter of

public concern”) 7; id. § 27.001(4)(A)(iii) (defining “exercise of the right to petition” as

7 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 due to the person’s official acts, fame, notoriety, or celebrity;
(B) a matter of political, social, or other interest to the community; or
(C) a subject of concern to the public.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7). In their trial court pleadings and on appeal, the parties cite
an obsolete version of the TCPA which stated that a “matter of public concern” also “includes an issue

7
including “a communication in or pertaining to . . . an executive or other proceeding before

a department of the state or federal government or a subdivision of the state or federal

government”). Instead, it argues that its claims are exempt from the TCPA.

We address each factual allegation in turn.

1. Common Law Fraud

First, Infinity alleged that McCarthy committed fraud by forging Garza’s signature

on a document which he submitted to TWC as part of his 2019 wage claim. 8 However, as

Infinity notes on appeal, the applicable version of the TCPA includes an exemption,

enacted in 2019, for “a legal action based on a common law fraud claim.” Id.

§ 27.010(a)(12). 9 This exemption squarely applies to Infinity’s claim regarding the

allegedly forged document submitted to the TWC. Accordingly, the TCPA does not apply

to this claim.

2. Text Messages

Next, Infinity alleged that McCarthy “publish[ed] false and misleading information

to current and prospective clients of [Infinity]” via text messages. Infinity argues that the

claims based on this allegation fall under the TCPA’s commercial speech exemption. We

agree.

Under the commercial speech exemption, regardless of whether a claim “is based

related to . . . a good, product, or service in the marketplace.” See Act of May 24, 2011, 82nd Leg., R.S.,
ch. 341, § 2, sec. 27.001(7)(E), 2011 Tex. Gen. Laws 960 (amended 2019).
This allegation constituted the sole factual basis for Infinity’s fraud cause of action; it did not
8

support any of the other causes of action.
9 In its response to the motion to dismiss, Infinity argued its fraud claim was exempt from the TCPA
under the commercial speech exemption. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(2). Here, the
“intended audience” of the allegedly forged document was not “an actual or potential buyer or customer” of
Infinity or McCarthy. Instead, the intended audience was the TWC. See id. The commercial speech
exemption therefore does not preclude the applicability of the TCPA to this claim.

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on or is in response to” the defendant’s exercise of constitutional rights, the TCPA will

generally not apply to

a legal action brought against a person primarily engaged in the business
of selling or leasing goods or services, if the statement or conduct arises
out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in which the intended
audience is an actual or potential buyer or customer.

Id. § 27.010(a)(2). In Castleman v. Internet Money Ltd., the Texas Supreme Court

clarified that, regardless of which type of transaction the suit arises out of (the “sale or

lease of goods, services, or an insurance product, insurance services, or a commercial

transaction”), “the intended audience” of the statement or conduct “must be actual or

potential customers of the defendant.” 546 S.W.3d 684, 688 (Tex. 2018) (“[T]he

commercial-speech exemption applies only to certain communications related to a good,

product, or service in the marketplace—communications made not as a protected

exercise of free speech by an individual, but as commercial speech which does no more

than propose a commercial transaction.” (internal quotations omitted)). The party

asserting the commercial speech exemption bears the burden of proving its applicability

by a preponderance of the evidence. Hieber v. Percheron Holdings, LLC, 591 S.W.3d

208, 211 (Tex. App.—Houston [14th Dist.] 2019, pet. denied); Hicks, 473 S.W.3d at 531.

When McCarthy sent the allegedly false text messages, he was primarily engaged

in the business of selling residential construction services, and he made the statements

in his capacity as such a seller. Moreover, the text messages arose out of a commercial

transaction involving residential construction and were directed to individuals, such as

Moqbel, who were actual or potential customers of McCarthy’s business. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.010(a)(2); Castleman, 546 S.W.3d at 688. And, neither

exception to the exemption applies. See TEX. CIV. PRAC. & REM. CODE ANN.

9
§ 27.010(b)(1), (2). Because the commercial speech exemption covers Infinity’s claims

regarding McCarthy’s text messages, the TCPA does not apply to Infinity’s claims insofar

as they rely on these specific factual allegations.

3. Solicitation of Facebook Reviews

Finally, Infinity asserted in its amended petition that McCarthy “solicit[ed]

individuals to knowingly leave false and misleading review[s] on Facebook.” Specifically,

it alleged:

McCarthy went out of his way to solicit individuals to knowingly leave false
and misleading review[s] on Facebook. Specifically, upon review of the
Facebook posts allegedly made by Venessa Ocanas and Antonio Alcaina
(“Facebook Posts”), one will see that these posts oddly contain the exact
same language. This is not coincidence. For reference[:] McCarthy shares
Antonio Alcaina’s post containing false information regarding Infinity that
Mr. Alcaina posted on or around July 28, 2020. Thereafter, McCarthy shares
Venessa Ocanas’ post containing false information regarding that [sic] Mr.
Alcaina posted on or around July 28, 2020. Both of the aforementioned
Facebook Posts initially posted by Venessa Ocanas and Antonio Alcaina—
two separate individuals—and then subsequently shared by McCarthy are
identical to one another. These posts indicate a coordinated effort to defame
and disparage Infinity’s business as a whole through language and actions
not otherwise protected under the law.

....

Although McCarthy did not post the applicable Facebook Posts himself, he
did knowingly and falsely share information about Infinity that McCarthy
cannot show is true. Specifically, when sharing Venessa Ocanas’ Facebook
post that it is “[s]uch a shame that [Infinity] is more interested in making
money then [sic] building with quality.” McCarthy knowingly and falsely
asserted Infinity’s business practices were such that Infinity habitually
mistreated its clients when sharing Antonio Alcaina’s Facebook [Post:]
“. . . that’s not a great way to take care of your clients.”[ 10]

(Internal references omitted.) Infinity argues that the commercial speech exemption

applies to these allegations.

10 Copies of the Facebook posts were attached as exhibits to Infinity’s petition.

10
 As noted, there are exceptions to the commercial speech exemption. Under

§ 27.010(b)(2), enacted in 2019, the exemption does not apply to “a legal action against

a person related to the communication, gathering, receiving, posting, or processing of

consumer opinions or commentary, evaluations of consumer complaints, or reviews or

ratings of businesses.” Id. § 27.010(b)(2); see Act of May 20, 2019, 86th Leg., R.S., ch.

378, § 9, 2019 Tex. Gen. Laws 684. In its argument regarding the commercial speech

exemption, Infinity does not address whether the § 27.010(b)(2) exception applies;

instead, it cites caselaw predating its enactment. See Castleman, 546 S.W.3d at 690;

Grant v. Pivot Tech. Sols., Inc., 556 S.W.3d 865, 879 (Tex. App.—Austin 2018, pet.

denied).

Infinity’s claims related to McCarthy’s alleged solicitation of negative Facebook

reviews are plainly “related to” the “communication, gathering, receiving, posting, or

processing” of “consumer opinions or commentary, evaluations of consumer complaints,

or reviews or ratings” of Infinity’s business. Therefore, the § 27.010(b)(2) exception is

applicable, and the commercial speech exemption does not preclude application of the

TCPA to Infinity’s claims in this regard.

C. Prima Facie Case

Because the TCPA is applicable to Infinity’s claims regarding McCarthy’s alleged

solicitation of Facebook reviews, Infinity had the burden to produce clear and specific

evidence of a prima facie case as to each essential element of those claims. Id.

§ 27.005(c).

A “prima facie case,” as used in the TCPA, means “evidence that is legally

sufficient to establish a claim as factually true if it is not countered.” S & S Emergency

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Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). It represents the “minimum

quantity of evidence necessary to support a rational inference that the allegation of fact

is true.” Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.]

2014, pet. denied). In the context of the TCPA, “clear” has been interpreted to mean

“unambiguous,” “sure,” or “free from doubt,” while “specific” has been interpreted to mean

“explicit” or “relating to a particular named thing.” In re Lipsky, 460 S.W.3d at 590. The

standard requires “element-by-element, claim-by-claim exactitude.” Elite Auto Body LLC

v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d).

We review the evidence in the light most favorable to the plaintiff. Schimmel, 438 S.W.3d

at 855–56.

1. Essential Elements

Infinity’s allegation regarding McCarthy’s solicitation of Facebook reviews

supported its causes of action for tortious interference with contract, tortious interference

with prospective business relations, defamation, and business disparagement.

To establish a claim for tortious interference with contract, a plaintiff must prove:

(1) an existing contract subject to interference; (2) a willful and intentional act of

interference with the contract; (3) that proximately caused the plaintiff’s injury; and (4)

caused actual damages or loss. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000).

The elements of a claim for tortious interference with prospective business

relations are:

(1) a reasonable probability that the parties would have entered into a
contractual relationship; (2) an “independently tortious or unlawful” act by
the defendant that prevented the relationship from occurring; (3) the
defendant did such act with a conscious desire to prevent the relationship

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 from occurring or knew that the interference was certain or substantially
certain to occur as a result of his conduct; and (4) the plaintiff suffered actual
harm or damage as a result of the defendant’s interference.

Super Starr Int’l, LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 846–47 (Tex. App.—

Corpus Christi–Edinburg 2017, no pet.).

To establish a business disparagement claim, a plaintiff must establish: (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. Forbes Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Special damages are synonymous

with economic damages and are distinguishable from general damages. In re Lipsky, 460

S.W.3d at 592 (noting that “[g]eneral damages are recoverable under a defamation claim

for non-economic losses, such as loss of reputation and mental anguish”).

To establish a defamation cause of action against a non-public figure, the plaintiff

must prove that the defendant: (1) published a statement; (2) that was defamatory

concerning the plaintiff; (3) with negligence regarding the truth of the statement. WFAA-

TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Unless the defamatory

statements are defamatory per se, the plaintiff must also plead and prove damages. In re

Lipsky, 460 S.W.3d at 593. Examples of defamation per se include “[a]ccusing someone

of a crime” and adversely remarking on an individual’s “fitness to conduct his or her

business.” Id.

2. Oral Hearing Testimony

As noted, the trial court heard oral testimony from witnesses at the motion to

dismiss hearing. In its brief, Infinity urges us to consider this evidence in determining

whether a prima facie case has been made. Infinity argues that there is a split among the

appellate courts as to whether live testimony may be considered in determining a TCPA

13
motion to dismiss. That was true with respect to the previous version of the statute, which

stated that “[i]n determining whether a legal action should be dismissed under this

chapter, the court shall consider the pleadings and supporting and opposing affidavits

stating the facts on which the liability or defense is based.” Act of May 21, 2011, 82nd

Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 963 (amended 2019) (current version

at TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a)); compare Batra v. Covenant Health

Sys., 562 S.W.3d 696, 707 (Tex. App.—Amarillo 2018, pet. denied) (“In addition to

consideration of the pleadings and affidavits, a trial court may, but is not required to, hear

live testimony and receive the submission of documentary evidence.”) with Quintanilla v.

West, 534 S.W.3d 34, 42 (Tex. App.—San Antonio 2017) (noting that “[t]he trial court

does not hear live testimony” in considering a TCPA motion to dismiss), rev’d on other

grounds, 573 S.W.3d 237 (Tex. 2019). However, the TCPA has since been amended to

state as follows:

In determining whether a legal action is subject to or should be dismissed
under this chapter, the court shall 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). Rule 166a, applicable to summary

judgment motions, allows evidence only in certain forms (such as affidavits, deposition

transcripts, interrogatory answers, or other discovery responses), and specifically states

that “[n]o oral testimony shall be received at the hearing.” TEX. R. CIV. P. 166a. By

amending the TCPA in this manner, the Legislature unmistakably intended to prohibit the

taking or consideration of oral testimony in determining a motion to dismiss under the

statute. We therefore do not consider any of the oral testimony taken at the July 29, 2021

hearing in our analysis.

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 3. Analysis

In its response to appellants’ motion to dismiss, Infinity produced only Garza’s

declaration, as set forth above, as well as two exhibits: (1) a screenshot of the text

message sent by Moqbel to Garza; and (2) a screenshot of what appears to be a post on

McCarthy’s Facebook page. 11 In arguing that Infinity failed to produce clear and specific

evidence of its claims, appellants contend that Garza’s declaration is “conclusory” and

“self-serving” and cannot meet that demanding standard. See Elizondo v. Krist, 415

S.W.3d 259, 264 (Tex. 2013) (“Conclusory statement[s] . . . [are] insufficient to create a

question of fact to defeat summary judgment.”); City of San Antonio v. Pollock, 284

S.W.3d 809, 816 (Tex. 2009) (holding conclusory, baseless testimony to be no evidence);

see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (stating that, in determining a

TCPA motion to dismiss, the court shall consider “evidence a court could consider” in

summary judgment proceedings); In re Lipsky, 460 S.W.3d at 592 (“Bare, baseless

opinions do not create fact questions, and neither are they a sufficient substitute for the

clear and specific evidence required to establish a prima facie case under the TCPA.”).

Appellants further argue that the factual allegations discussed in Infinity’s response and

Garza’s declaration do not align with the allegations made in their live petition.

We agree with appellants that Infinity has failed to produce clear and specific

evidence of any claim arising out of McCarthy’s alleged solicitation of false Facebook

reviews. Garza’s declaration did not mention anything about McCarthy soliciting false

Facebook reviews, and none of the other exhibits attached to Infinity’s response supports

11 The post stated: “This is the ‘sales consultant’ for Infinity Homes threatening me with legal actions
for sharing public information from their page.” It was accompanied by a screenshot of a private message
sent to McCarthy, in which the author criticized McCarthy for “messaging former clients and new clients
with your sob story” and told McCarthy to “stay off the Infinity page.”

15
this claim. Accordingly, there is no evidence of any element of any cause of action arising

out of this factual allegation.

On appeal, in its discussion regarding whether a prima facie case has been made,

Infinity relies heavily on the allegations made in its amended petition, and the exhibits

attached to that pleading. But pleadings do not constitute evidence, even if they are sworn

or verified. 12 Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilner, 904 S.W.2d 656, 660 (Tex.

1995); see Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807,

819 (Tex. 2021) (“Clearly, a party cannot rely on its own pleaded allegations as evidence

of facts to support its summary-judgment motion or to oppose its opponent’s summary-

judgment motion.”); Yu v. Koo, 633 S.W.3d 712, 729 (Tex. App.—El Paso 2021, no pet.)

(“Neither the pleadings themselves, nor the allegations within them, constitute

evidence.”); Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 27 (Tex. App.—

Houston [14th Dist.] 2020, no pet.) (recognizing that pleadings are not evidence “because

assertions in a petition are nothing more than allegations”).

Because Infinity produced no “clear and specific” evidence to support its claims

regarding McCarthy’s solicitation of false Facebook reviews, the TCPA motion to dismiss

should have been granted with respect to this part of Infinity’s suit. We sustain appellants’

issue in part.

III. CONCLUSION

We reverse the trial court’s judgment as it pertains to Infinity’s claims regarding

McCarthy’s solicitation of Facebook reviews. We remand with instructions to dismiss

those claims pursuant to the TCPA, to award court courts and attorney’s fees to

12 Infinity’s pleadings were not sworn or verified.

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appellants, and to consider whether to award sanctions to appellants. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.009(a) (“Except as provided by Subsection (c), if the court orders

dismissal of a legal action under this chapter, the court: (1) shall award to the moving

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

action; and (2) may award to the moving party sanctions against the party who brought

the legal action as the court determines sufficient to deter the party who brought the legal

action from bringing similar actions described in this chapter.”).

As noted, after appellants’ motion to dismiss was denied by operation of law and

appellants perfected their appeal, the trial court signed an order formally denying the

motion and finding that it was “frivolous or solely intended to delay.” See id. § 27.009(b).

Given our determination herein that the motion to dismiss should have been granted in

part, we further conclude that the motion to dismiss was not frivolous or solely intended

to delay. Accordingly, we reverse that portion of the judgment as well and remand for

further proceedings consistent with this opinion.

The remainder of the trial court’s judgment is affirmed.

DORI CONTRERAS
Chief Justice

Delivered and filed on the
9th day of June, 2022.

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