Opinion
04-21-00034-CV
03-02-2022
Kevin DUNN, Appellant v. THE KADENCE COLLECTIVE, LLC, Appellee
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2020CI12519 Honorable Laura Salinas, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
AFFIRMED
Kevin Dunn appeals an order denying his motion to dismiss the lawsuit against him under the Texas Citizens Participation Act (TCPA). We affirm.
Background
Appellee The Kadence Collective, LLC provides marketing and support services to businesses that operate on the Salesforce platform. Rob Martinez is Kadence's CEO. Dunn was Kadence's head of sales, responsible for managing and training several employees, including Maggie Allard. Before Dunn became Kadence's head of sales, he worked for Salesforce. According to Martinez, "Salesforce is, by far, Kadence's largest sales partner."
Kadence fired Dunn on July 8, 2020. Shortly thereafter, Dunn sent two e-mails. He sent the first e-mail to five Kadence employees, including Martinez, explaining that he was no longer with Kadence "because of criticisms that I voiced to Rob Martinez regarding his ability to lead a company. Rob is the very definition of a coward and will not respond to any sort of constructive criticism." Dunn sent the second e-mail to "the entire company," describing what he characterized as "repeated incidents of lying, misconduct and bullying carried out by Chris Hettich towards Maggie Allard. . . . throughout the month of March and were met with zero response from Rob and Hillary [Miller, Kadence's head of HR]." Around the same time, Dunn also made a post on LinkedIn identifying Kadence as "a certified Salesforce partner" and claiming "Kadence, since March, has allowed for a contracted male employee to intimidate and harass a full-time employee and member of my sales team. . . . I would advise to anyone in my network that you steer clear of doing business, or engaging with, Kadence Collective."
On July 10, 2020, Kadence filed suit against Dunn asserting causes of action for libel and tortious interference with existing and prospective business relationships. Dunn answered and filed a motion to dismiss under the TCPA. Kadence requested leave to conduct discovery and filed a response to Dunn's motion to dismiss, along with evidence in support of its response. Dunn filed a reply and a declaration showing the attorney's fees he had incurred to date and would incur in the event of an appeal. The trial court allowed Kadence to depose Dunn on limited issues related to his motion to dismiss. On December 18, the trial court held a hearing on Dunn's motion to dismiss. After Dunn's motion was overruled by operation of law, he timely appealed.
Analysis
Standard of Review and Applicable Law
We review a trial court's denial of a TCPA motion to dismiss de novo. Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.-San Antonio 2018, pet. denied). In reviewing a ruling on a TCPA motion, "[w]e view the pleadings and evidence in the light most favorable to the nonmovant." Id.
A motion to dismiss under the TCPA is subject to a three-part analysis. First, under the TCPA as amended in 2019, the movant is required to demonstrate that the respondent's "legal action is based on or is in response to [the movant's] exercise of the right of free speech. . . ." Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); see also id. § 27.005(b). For purposes of the TCPA, "'[e]xercise of the right of free speech' means a communication made in connection with a matter of public concern." Id. § 27.001(3). "'Matter of public concern' means a statement or activity regarding . . . (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). If the movant shows that the TCPA applies, the burden shifts to the respondent to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). If the respondent establishes its prima facie case, the burden shifts back to the movant to "establish[] an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law." Id. § 27.005(d).
Application
While Kadence's petition does not expressly identify the allegedly defamatory statements, Kadence attached Dunn's e-mails and LinkedIn post to both its petition and its response to Dunn's motion to dismiss. See id. § 27.006(a) (trial court shall consider pleadings and evidence). The parties agreed below that the gist of Dunn's communications was his contention that Kadence's leadership permitted a "culture of harassment" in the workplace. We will assume, without deciding, that Dunn's communications on this topic were "made in connection with a matter of public concern" and, as a result, implicated his exercise of the right of free speech and triggered the application of the TCPA. See id. § 27.001(3), (7); see also id. § 27.011(b) (TCPA "shall be construed liberally to effectuate its purpose and intent fully"). We must therefore determine whether Kadence presented clear and specific evidence establishing a prima facie case for each essential element of its claims. Id. § 27.005(c).
The TCPA does not define "clear and specific evidence." See id.; In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The Texas Supreme Court has held that this evidentiary standard neither "impose[s] a higher burden of proof than that required of the plaintiff at trial" nor "require[s] direct evidence of each essential element of the underlying claim to avoid dismissal." In re Lipsky, 460 S.W.3d at 591. "Instead, a plaintiff must provide enough detail to show the factual basis for its claim. In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss." Id. This standard may be satisfied with either direct or circumstantial evidence. Id. at 589, 591.
While the TCPA also does not define "prima facie case," that term "has a traditional legal meaning." Id. at 590. A TCPA respondent establishes a prima facie case by presenting "evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Id. However, a TCPA respondent "is not required to marshal all of its evidence" to establish a prima facie case. See Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 305 (Tex. App.- Houston [14th Dist.] 2020, no pet.); see also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 354-55 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (describing the TCPA's prima facie burden as "minimal"). Instead, the respondent must present "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." In re Lipsky, 460 S.W.3d at 590 (internal quotation marks omitted).
Libel
The first cause of action alleged in Kadence's petition is a libel claim. Libel is "a defamation expressed in written or other graphic form that . . . tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation[.]" Tex. Civ. Prac. & Rem. Code Ann. § 73.001; Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 623-24 (Tex. 2018). Because libel is a form of defamation, this claim required Kadence to establish a prima facie case for four elements: "(1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning [Kadence], (3) with the requisite degree of fault regarding the truth of the statement, and (4) damages unless the statement was defamatory per se." Day v. Fed'n of State Med. Bds. of the U.S., Inc., 579 S.W.3d 810, 819 (Tex. App.-San Antonio 2019, pet. denied); see also Tex. Civ. Prac. & Rem. Code § 27.005(c).
While section 73.001 refers to "a living person," Dunn has not argued that this statutory definition excludes a limited liability company like Kadence.
1. Were Dunn's communications non-actionable opinions?
Dunn first argues his communications were expressions of his own opinion that are not actionable in defamation. In reviewing this contention, we focus on the verifiability of Dunn's statements. Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 794-95 (Tex. 2019). Even if a statement is verifiable as false, it will not support a defamation claim "if the entire context in which it was made discloses that it is merely an opinion masquerading as fact." Dall. Morning News, 554 S.W.3d at 639 (internal quotation marks omitted). "The question of whether a statement is non-actionable opinion is a question of law." Scripps NP Operating, 573 S.W.3d at 795.
a. Dunn's first e-mail
Dunn made his first challenged communication in an e-mail to a small group of Kadence employees. That e-mail stated in its entirety:
Hey team,
Please know that I am no longer a part of Kadence Collective because of criticisms that I voiced to Rob Martinez regarding his ability to lead a company.
Rob is the very definition of a coward and will not respond to any sort of constructive criticism. I wish you all the best of luck.
Thank you, Kevin
We conclude this e-mail "cannot be understood to convey a verifiable fact." See Dall. Morning News, 554 S.W.3d at 639. Instead, it merely states Dunn's opinion of Martinez's leadership abilities. As a result, this first e-mail cannot, standing alone, form the basis of a defamation claim. See id.; see also Scripps NP Operating, 573 S.W.3d at 794-95.
b. Dunn's second e-mail and LinkedIn post
In his second e-mail, which he sent to Kadence's entire staff, Dunn described his statements as a "completely objective account of repeated incidents of lying, misconduct and bullying" and affirmatively stated that those incidents "were met with zero response from" Kadence leadership. He included several paragraphs describing specific conversations and incidents-including dates, times, and the names of the Kadence employees involved-that purportedly support his account. He then pointed to these factual recitations as support for his assertion that Kadence allows contractors to "disrespect and bully full-time employees without any consequence or repercussion" and "is not willing to protect their employees."
Dunn's LinkedIn post also affirmatively purported to be fact-based. The post stated, "Kadence, since March, has allowed for a contracted male employee to intimidate and harass a full-time employee and member of my sales team," and Dunn alleged that he "ha[s] the documentation to back this up[.]" As he did in his second e-mail, Dunn pointed to these factual statements as support for his assertion that Kadence "has reinforced a culture of harassment."
After considering the second e-mail and the LinkedIn post in the entire context in which they were made, we cannot agree with Dunn's assertion that they are merely statements of his opinion about factual events. See Dall. Morning News, 554 S.W.3d at 639; see also Scripps NP Operating, 573 S.W.3d at 795. As noted above, Dunn himself described his second e-mail as "completely objective," and he stated his LinkedIn post was supported by documentation. See Bentley v. Bunton, 94 S.W.3d 561, 583-85 (Tex. 2002) (statements were not protected opinion where speaker "constantly insisted that his charges were borne out by objective, provable facts"). Additionally, Kadence presented evidence that Dunn's statements were objectively false. In an affidavit, Allard explicitly denied the second e-mail's description of "[r]epeated incidents of lying, misconduct and bullying toward" her. She stated that Dunn's descriptions of "zero response" from Kadence's leaders were false because no events "requiring any type of 'response'" had ever occurred. She further attested that Dunn's statements "falsely depict[] Kadence's culture and organization" and stated that she had never been subjected to any bullying or harassment from "any Kadence employee nor any member of its management." She explained that she had never complained to anyone that Hettich had behaved inappropriately "as there was no such behavior directed towards me nor towards anyone else of which I am aware." Finally, she averred that Dunn's statement "that this is 'a case of a male employee blatantly disrespecting a female employee without any consequence' is patently false" because "Hettich did not disrespect [her]."
With regard to Dunn's LinkedIn post, Allard averred that she was the "full-time employee and member of [Dunn's] sales team" referred to in the post. She further attested that Dunn's statement that Kadence had allowed "a contracted male employee to intimidate and harass" her was false and that she "was never the subject or target of any harassment or intimidation during [her] employment with Kadence nor was there a culture of harassment at Kadence."
Dunn argues that Allard's affidavit cannot satisfy Kadence's burden as to the falsity of his statements because the conclusions in Allard's affidavit "are directly contradicted by Dunn." Dunn appears to contend that a TCPA respondent cannot establish a prima facie case as to a specific essential element if the movant comes forward with any conflicting evidence on that element. However, such a standard would impermissibly "impose a higher burden of proof" in a TCPA proceeding than would be required for the respondent to prevail at trial. See In re Lipsky, 460 S.W.3d at 591. Accordingly, we reject the assertion that Allard's affidavit was not sufficient to establish a prima facie case on the falsity of Dunn's statements.
Kadence also presented evidence of text messages between Allard and Martinez and between Allard and Miller that occurred shortly after Dunn's e-mails and LinkedIn post. In the conversation with Martinez, Allard stated that she "communicated with [Hettich] and he knows there is absolutely no truth to this[.]" She described the "emotions and words" Dunn attributed to her as "false" and asked whether there was any way she could express her disavowal of Dunn's statements to Kadence's legal counsel. In the conversation with Miller, Allard asked Miller to "reach out to [Hettich]" to confirm that she "had absolutely nothing to do with [Dunn's LinkedIn] post[.]" She also stated, "Not once have I ever said harassment about anyone I work with[.]"
This record shows that Dunn's statements about a "culture of harassment" are based on specific, fact-based allegations of events. Dunn contends these events occurred; Kadence presented evidence that they did not. If Kadence's version of events is true, then Dunn's purported opinions are objectively false. Accordingly, the communications in Dunn's second e-mail and LinkedIn post are "capable of objective proof as true or false" and therefore "are not protected opinion." See Scripps NP Operating, 573 S.W.3d at 795; Bentley, 94 S.W.3d at 585. Nor are they "opinion masquerading as fact." Dall. Morning News, 554 S.W.3d at 639. Because Kadence presented clear and specific evidence to support a rational inference that the statements in Dunn's communications were false, it established a prima facie case on the first element of its libel claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c); Day, 579 S.W.3d at 819.
2. Were Dunn's statements reasonably capable of defamatory meaning?
Dunn next argues his statements were not defamatory because "[a] reasonable person could only conclude" that they "merely reflected his personal opinions regarding the way [Kadence] treated its employees." He argues, "At most, his statements are those that may aptly be described as merely unpleasant or objectionable to [Kadence]." We have already rejected Dunn's assertion that his second e-mail and LinkedIn post were non-actionable expressions of his opinion. The question, then, is whether Dunn's statements were reasonably capable of defamatory meaning. See D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 438-39 (Tex. 2017) (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987)).
"In making the initial determination of whether a publication is capable of a defamatory meaning, we examine its 'gist.' That is, we construe the publication as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it." Id. at 434 (internal citation and quotation marks omitted). A "person of ordinary intelligence" is one "who exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications." New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004). "A statement is defamatory if the words tend to injure the plaintiff's reputation, exposing him to hatred, contempt, ridicule, or financial injury, or if it tends to impeach the person's honesty, integrity, or virtue." Hoskins v. Fuchs, 517 S.W.3d 834, 840 (Tex. App.-Fort Worth 2016, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 73.001). A defamatory statement is "derogatory, degrading, somewhat shocking, and contain[s] elements of disgrace"; it must be more than "merely unflattering, abusive, annoying, irksome, or embarrassing[.]" Id. "Whether a statement is reasonably capable of defamatory meaning is a question of law for the court." Johnson v. Phillips, 526 S.W.3d 529, 534 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).
When taken as a whole, the gist of Dunn's communications is that Kadence knowingly permitted harassment and bullying in the workplace. Because we must consider how a person of ordinary intelligence would perceive those communications under the circumstances, the manner in which Dunn published them is relevant. See New Times, Inc., 146 S.W.3d at 159 ("[T]he reasonable reader must consider the type of publication in which the offending material appears."). Dunn's second e-mail was directed to Kadence's employees. The evidence shows that two of Kadence's employees quit after reading Dunn's communications and cited "Dunn's post and emails as the primary reason" for their departures.
Dunn also published his communications on LinkedIn, a website that touts itself as "the world's largest professional network" and states that its mission is to "connect the world's professionals." See About LinkedIn, LinkedIn.com, https://about.linkedin.com/?trk=homepage-basic_directory_aboutUrl (last visited January 20, 2022). As Kadence argued below, Dunn's LinkedIn post was published "to the hundreds of people on [Dunn's] LinkedIn network, including members of Salesforce management directly responsible for determining whether to use Kadence's services[.]" Dunn himself argued below that Kadence's alleged workplace culture "impacts potentially hundreds if not thousands of not only Kadence clients, but Salesforce-partner clients as well." Dunn's decision to publish his communications on LinkedIn is significant because the evidence shows: (1) Kadence's business is largely referral-based; and (2) two managers from Salesforce-Kadence's largest source of referrals-told Allard they had seen Dunn's LinkedIn post, believed the allegations stated in the post, and interpreted the post as showing Allard had been subjected to gender-based or sexual harassment during her employment at Kadence. See Hoskins, 517 S.W.3d at 840.
Based on this evidence, the trial court did not err by impliedly concluding that Dunn's communications, when "construed as a whole and in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive them," can be reasonably interpreted as tending to injure Kadence's reputation and having the potential to inflict financial injury on it. See Tex. Civ. Prac. & Rem. Code § 73.001; Hoskins, 517 S.W.3d at 837, 841 (allegations of sexual relationship between university professor and graduate student assistant were reasonably capable of defamatory meaning); Gaylord Broadcasting Co., L.P. v. Francis, 7 S.W.3d 279, 283 (Tex. App.-Dallas 1999, pet. denied) (news reports concluding judge was "hardly working" were reasonably capable of a defamatory meaning). Consequently, the trial court did not err by impliedly concluding that those statements are reasonably capable of defamatory meaning. See Hoskins, 517 S.W.3d at 841; Gaylord, 7 S.W.3d at 283. Kadence therefore satisfied its TCPA burden as to this element of its libel claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c); Day, 579 S.W.3d at 819.
3. Did Kadence present evidence that Dunn acted negligently?
Dunn concedes on appeal that Kadence is not a public figure. As a result, the relevant question on the third element of Kadence's libel claim is whether Kadence made a prima facie showing that Dunn acted negligently. See Day, 579 S.W.3d at 822. "In the defamation context, negligence is defined as the failure to investigate the truth or falsity of a statement before publication, and the failure to act as a reasonably prudent person." Id. (internal quotation marks omitted). A defamation plaintiff must show that the defendant knew or should have known his statements were false. Id.
Kadence presented evidence that it fired Dunn, and Dunn's e-mails and LinkedIn post affirmatively state that they were made after his employment with Kadence ended. As noted above, Kadence presented evidence that Allard, the employee whose alleged mistreatment formed the basis of Dunn's communications, repeatedly and unequivocally stated that she had never been harassed or bullied. She also stated that she had never reported any such occurrences to anyone.
Kadence presented evidence that Dunn himself agreed Allard was "a truthful person." Finally, Kadence presented evidence that when Martinez "told Dunn Kadence was going to terminate him, [Dunn] threatened to ruin Kadence's business. Specifically, he said something to the effect that: 'I feel sorry for you because Kadence won't exist anymore after I'm done with it.'" Kadence also noted below that Dunn did not publish his purported concerns about workplace harassment until several months after the incidents allegedly occurred and after Dunn had already been fired.
This evidence, when viewed in the light most favorable to Kadence, is more than the minimum quantum necessary to support a rational inference that Dunn knew or should have known his statements were false. See In re Lipsky, 460 S.W.3d at 590-91; Elkins, 553 S.W.3d at 603. Accordingly, Kadence satisfied its TCPA burden as to this element of its libel claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c); Day, 579 S.W.3d at 819.
4. Did Kadence present evidence of injury?
Finally, Dunn argues there is no evidence Kadence suffered any financial injury. We note, however, that Kadence has primarily argued its injury arises from damage to its reputation. "Reputation damages are recoverable but not susceptible to precise calculation." Anderson v. Durant, 550 S.W.3d 605, 621 (Tex. 2018). Nevertheless, "an award of damages cannot be based on mere speculation that the plaintiff's reputation suffered." Id. at 622. The Texas Supreme Court has noted that "loss of reputation for defamation is concerned with a recipient believing the statement. If every recipient discredits the statement, no loss of reputation has occurred." Hancock v. Variyam, 400 S.W.3d 59, 71 (Tex. 2013).
Kadence presented evidence that nineteen people saw and "liked" Dunn's LinkedIn post, and one person responded, "Thanks Kevin Dunn for taking a stand and shining a light on this important issue. Wishing you lots of success[.]" The evidence further shows that one of the people who "liked" Dunn's post was a man named "James E.," who identified himself as a "Director [of] Partner Sales" for Salesforce. As noted above, Kadence also presented evidence that two Salesforce managers saw and believed Dunn's LinkedIn post. Finally, Kadence presented evidence that after Dunn sent his e-mails and published his LinkedIn post, two members of Kadence's sales team resigned, "citing Dunn's post and e-mails as the primary reason." This evidence supports a rational inference that at least some of the recipients of Dunn's statements credited his assertions. See id.
The evidence that multiple Salesforce employees saw and believed Dunn's statements is significant because "[l]osing a job or business opportunity due to defamation can support recovery of reputation damages." Anderson, 550 S.W.3d at 622. The evidence shows that in the year prior to Dunn's statements, "approximately Fifty-Five percent (55%) of Kadence's closed-won deals was derived from Salesforce referrals." Kadence also presented evidence that after Dunn's statements, it "experienced a significant drop in its partner referrals from Salesforce" and was therefore "required to transition an existing employee" into a new position in an "effort to rehabilitate its image with Salesforce." In his unsworn declaration in support of Kadence's TCPA response, Martinez estimated that Kadence has lost approximately $2,000,000 in business due to Dunn's statements. In addition to this evidence of lost business, Martinez averred that Kadence "spent approximately 80 manhours in finding and training replacements for those sales team members" who left due to Dunn's post and e-mails.
Dunn contends that Martinez's declaration, specifically its contention that Kadence has lost approximately $2,000,000 in business, is conclusory. "A conclusory statement is one that does not provide the underlying facts to support the conclusion." Lowry v. Tarbox, 537 S.W.3d 599, 619 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). Martinez's declaration stated that he is Kadence's CEO and that he is "directly involved with both the sales and technological aspects of Kadence's business." Martinez also averred that he reached his estimates of Kadence's lost business by "using prior months and year over year as a measuring stick," and he stated that Kadence's partner referrals from Salesforces have dropped from an average of twenty-six per month before Dunn's LinkedIn post to two per month after. Because Martinez's declaration stated the basis for his personal knowledge and provided a factual basis for his conclusions, it is not conclusory. See id. Moreover, the Texas Supreme Court has held that in cases of reputational injury, "[e]vidence assigning an actual dollar value to the injury is not required; rather, reasonable compensation is the touchstone for quantifying damages." Anderson, 550 S.W.3d at 621 (internal citation omitted).
When viewed in the light most favorable to Kadence, the evidence before the trial court was more than the minimum quantum necessary to support a rational inference that Dunn's statements both damaged Kadence's reputation and caused it to suffer financial losses. See In re Lipsky, 460 S.W.3d at 590-91; Elkins, 553 S.W.3d at 603. Kadence therefore satisfied its TCPA burden as to the final essential element of its libel claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c); Day, 579 S.W.3d at 819.
5. Conclusion
The evidence Kadence presented in response to Dunn's motion is sufficiently detailed to establish "the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged" Kadence. See In re Lipsky, 460 S.W.3d at 591. Because Kadence established by clear and specific evidence a prima facie case for each essential element of its libel claim, we overrule Dunn's argument that Kadence failed to meet its TCPA burden as to that claim. See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re Lipsky, 460 S.W.3d at 590-91.
Tortious Interference
The second cause of action alleged in Kadence's petition is "tortious interference with existing and prospective business relationships." In the trial court, both parties treated this claim as a single cause of action with four essential elements: (1) a reasonable probability that Kadence would have entered into a prospective relationship; (2) Dunn's conduct was independently tortious or wrongful; (3) Dunn's interference resulted in actual harm or damage to Kadence; and (4) Dunn's interference proximately caused Kadence's damages. These elements, plus a showing that Dunn "acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct," are required to establish a claim of tortious interference with a prospective business relationship. See Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 923 (Tex. 2013).
On appeal, Dunn argues for the first time that Kadence's tortious interference claim asserted two separate causes of action. He correctly identifies the elements described above as essential to proving a claim for tortious interference with a prospective business relationship. See id. He then contends that "[t]here is some question under Texas law whether a plaintiff may maintain a claim for tortious interference with an existing business relationship in the absence of a valid contract." He argues that if Texas law authorizes such a claim, Kadence bore the burden to present clear and specific evidence that: (1) Kadence had an existing business relationship with a third party that was subject to interference; (2) Dunn committed a willful and intentional act of interference that proximately caused Kadence's injury; and (3) Dunn acted with legal malice. For the purposes of this appeal only, we will assume that Texas recognizes a claim for tortious interference with an existing business relationship in the absence of a contract and that Dunn's brief correctly states the essential elements of such a claim. See Montoya v. San Angelo Cmty. Med. Ctr., No. 03-16-00510-CV, 2018 WL 2437508, at *9 (Tex. App.-Austin May 31, 2018, pet. denied) (mem. op.); see also Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996) (defining "legal malice").
We have already held that Kadence presented evidence sufficient to avoid a TCPA dismissal of its libel claim. This evidence is also sufficient to satisfy Kadence's TCPA burden on one of the essential elements of a claim for tortious interference with a prospective business relationship: that Dunn's conduct was independently tortious or wrongful. See Coinmach, 417 S.W.3d at 923.
Much of the evidence discussed above also supports the remaining elements of Kadence's claim for tortious interference with a prospective business relationship. See id. As previously explained, the evidence shows that "Salesforce is, by far, Kadence's largest sales partner"; before Dunn published his LinkedIn post, Kadence received a significant amount of its "closed-won" business from Salesforce referrals; multiple Salesforce employees saw and believed Dunn's post; and Salesforce referrals to Kadence dropped after Dunn published his post. This evidence is sufficient to permit a rational inference of a reasonable probability that Kadence would have entered into relationships with customers referred by Salesforce. See id.; see also In re Lipsky, 460 S.W.3d at 590-91. This evidence is also sufficient to support a rational inference that Dunn interfered with these referrals and that his interference proximately caused harm to Kadence. See Coinmach, 417 S.W.3d at 923.
Additionally, the evidence shows Dunn was both Kadence's director of sales and a former employee of Salesforce. As a result, the trial court could reasonably infer that Dunn was familiar with the importance of the Salesforce contacts to Kadence's business. See Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) (TCPA respondent may satisfy its prima facie burden through circumstantial evidence that supports reasonable inferences). Accordingly, the evidence showing that Dunn told Martinez, "I feel sorry for you because Kadence won't exist anymore after I'm done with it" and then advised readers of his LinkedIn post to "steer clear of doing business, or engaging with, Kadence Collective" is sufficient to permit a rational inference that Dunn either acted with a conscious desire to prevent the Salesforce referrals from occurring or knew that such interference was certain or substantially certain. See Coinmach, 417 S.W.3d at 923; see also In re Lipsky, 460 S.W.3d at 590-91. This evidence, when viewed in the light most favorable to Kadence, supports the trial court's implicit conclusion that Kadence established a prima facie case on its claim for tortious interference with a prospective business relationship. See Coinmach, 417 S.W.3d at 923; Elkins, 553 S.W.3d at 603.
Similarly, the evidence described above supports a rational inference that: (1) Kadence had an existing business relationship with Salesforce that was subject to interference; (2) Dunn committed a willful and intentional act that interfered with that relationship; and (3) Dunn's actions proximately caused injury to Kadence. See Montoya, 2018 WL 2437508, at *9; see also In re Lipsky, 460 S.W.3d at 590-91. This evidence is also sufficient to support a rational inference that Dunn's wrongful conduct, if any, was "intentional and without just cause or excuse" and therefore amounted to legal malice. See Cazarez, 937 S.W.2d at 452. As a result, to the extent that Texas law recognizes a claim for tortious interference with an existing business relationship in the absence of a contract, Kadence's evidence was sufficient to establish a prima facie case for the essential elements of that claim. See Montoya, 2018 WL 2437508, at *9; see also In re Lipsky, 460 S.W.3d at 590-91.
For these reasons, we overrule Dunn's argument that Kadence failed to meet its TCPA burden on its tortious interference claims. See Tex. Civ. Prac. & Rem. Code § 27.005(c).
Affirmative Defenses
On appeal, Dunn does not specifically argue that he proved an affirmative defense as a matter of law. See id. § 27.005(d). As noted above, however, Dunn argues here that his allegedly defamatory statements are not actionable as a matter of law because those statements were expressions of his opinion. In the trial court, Dunn treated this issue as an affirmative defense. For the reasons explained above, we hold Dunn failed to show as a matter of law that his statements were non-actionable opinion. See Scripps NP Operating, 573 S.W.3d at 795. Accordingly, to the extent Dunn contends he proved an affirmative defense as a matter of law, he did not satisfy that burden. See Tex. Civ. Prac. & Rem. Code § 27.005(d).
Conclusion
We affirm the denial of Dunn's TCPA motion.