Court of Appeals of Texas, Fourth District, San Antonio
ROBERT B. JAMES, DDS, INC.; Robert B. James, DDS, Individually; Jean James, Individually; and Alexis Mei Pyles, Individually, Appellants
Cassandra J. ELKINS, DDS Appellee
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-19860 Honorable Karen H. Pozza, Judge
Sitting: Marialyn Barnard, Justice Luz Elena D. Chapa,
Justice Irene Rios, Justice
an appeal from a trial court's order denying two motions
to dismiss under the Texas Citizens Participation Act (TCPA).
In this appeal, we must determine whether the TCPA applies to
Cassandra J. Elkins, DDS's legal actions and, if so,
whether Dr. Elkins established by clear and specific evidence
each element challenged on appeal. As explained in this
opinion, we affirm as to some legal actions, reverse and
render a dismissal as to others, and remand for a
determination of attorney's fees and costs as to the
dismissed legal actions.
1991, Robert James, DDS hired Dr. Elkins to work at his San
Antonio-based pediatric dental practice, Robert B. James,
DDS, Inc. ("the Practice"). Dr. James and Dr.
Elkins signed a written employment contract providing the
terms of Dr. Elkins's compensation. Dr. Elkins worked for
the Practice for twenty-three years and, according to her,
the Practice consistently paid her 30% of her gross
production. Dr. James hoped that when he retired, Dr. Elkins
would purchase the Practice. But when he offered to sell the
Practice to Dr. Elkins, she declined.
James had his wife, Jean James, investigate Dr. Elkins's
payroll history, and Jean sought the help of the
Practice's administrator, Alexis Mei Pyles. Dr. James
informed Jean and Pyles that, under Dr. Elkins's
employment contract, she should have been paid only 30% of
net production, a calculation based on collections and not
gross production. Jean and Pyles reviewed financial records
for the prior three years and found Dr. Elkins was being paid
30% of gross production. Pyles prepared a Fraud Examination
Report, concluding that Dr. Elkins misappropriated over $350,
000. When Jean and Pyles informed Dr. James of their
findings, Dr. James decided to terminate Dr. Elkins's
employment. Thereafter, Jean and Pyles reported Dr.
Elkins's alleged theft to the San Antonio Police
Department (SAPD). During the SAPD's investigation, Dr.
James, Jean, and Pyles each made statements to the SAPD
alleging Dr. Elkins stole money from the Practice. The
Practice also made an insurance claim based on Dr.
Elkins's purported theft with its insurer, Travelers
Casualty Insurance Company. Dr. Elkins was later indicted and
Elkins sued the Practice, Dr. James, Jean, and Pyles,
alleging various causes of action against them. Her theories
of liability included defamation, business disparagement,
intentional infliction of emotional distress, and civil
conspiracy. The Practice, Dr. James, and Jean (collectively
"the James Appellants") filed a partial motion to
dismiss under the TCPA; Pyles filed a separate TCPA motion to
dismiss. Dr. Elkins responded by producing her affidavit,
records from the Practice, the Fraud Examination Report, the
SAPD report, Dr. James's and Jean's written
statements to the SAPD, and other documents. Dr. Elkins also
filed a motion for continuance and for discovery, which the
trial court denied. No party produced the employment
contract, which had been lost over the years.
hearing the motions to dismiss, the trial court signed an
order denying both motions without specifying the basis for
its order. The James Appellants and Pyles filed a joint
motion to reconsider, attaching additional evidence it
alleged was newly discovered. In response, Dr. Elkins
produced additional evidence to dispute the authenticity of
the evidence attached to the joint motion. The trial court
signed an order denying the joint motion, and this appeal
Law & Standard of Review
legal action is based on, relates to, or is in response to a
party's exercise of First Amendment rights listed in the
TCPA, that party "may file a motion to dismiss the legal
action." Tex. Civ. Prac. & Rem. Code. § 27.003
(listing rights of free speech, association, and petition);
see Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL
4273265, at *1 (Tex. App.-San Antonio July 15, 2015, no pet.)
(mem. op.). The TCPA's dismissal procedure contains a
burden-shifting framework to ensure the legal actions to
which the TCPA applies have merit and are not brought to
intimidate or silence those who exercise First Amendment
rights listed in the TCPA. See Youngkin v. Hines,
No. 16-0935, 2018 WL 1973661, at *2 (Tex. Apr. 27, 2018).
However, the TCPA exempts several categories of legal actions
from its dismissal procedure. § 27.010.
review de novo the denial of a TCPA motion to dismiss and
whether the parties satisfied their respective burdens as set
out in the TCPA. Reyna, 2015 WL 4273265, at *2. In
our review, we must "consider the pleadings and
supporting and opposing affidavits stating the facts on which
the liability or defense is based." § 27.006(a);
see In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015)
(orig. proceeding). We view the pleadings and evidence in the
light most favorable to the nonmovant. See Spencer v.
Overpeck, No. 04-16-00565-CV, 2017 WL 993093, at *4
(Tex. App.-San Antonio Mar. 15, 2017, pet. denied) (mem.
Insurance Contract Exemption in Section 27.010(d)
Elkins argues we should affirm the trial court's order in
its entirety because, even if her legal actions relate to
Pyles's and the James Appellants' exercise of their
First Amendment rights, the TCPA does not apply because her
legal actions fall under the insurance contract exemption.
The TCPA exempts "a legal action . . . arising out of an
insurance contract." § 27.010(d). The TCPA broadly
defines a "legal action, " which can mean a
"lawsuit" or a "cause of action." §
27.001(6); accord D Magazine Partners, L.P. v.
Rosenthal, 529 S.W.3d 429, 442 (Tex. 2017). The TCPA
does not further define "cause of action, " but
"a 'cause of action' means the fact or facts
entitling one to institute and maintain an action, which must
be alleged and proved in order to obtain relief."
Loaisiga v. Cerda, 379 S.W.3d 248, 262 (Tex. 2012)
(internal quotation marks omitted). It is undisputed that
this case involves the Practice's insurance policy with
Travelers and Dr. Elkins has alleged causes of action. The
only dispute about the insurance contract exemption is
whether the alleged facts entitling Dr. Elkins to relief
(i.e. her causes of action) are legal actions "arising
out of" the insurance policy with Travelers.
Legal Actions "Arising Out of an Insurance
Dr. Elkins's causes of action arise out of the insurance
contract requires construing the phrase "arising out
of" in the TCPA. We review issues of statutory
construction de novo. Adams v. Starside Custom Builders,
LLC, No. 16-0786, 2018 WL 1883075, at *3 (Tex. Apr. 20,
2018). "Our fundamental goal when reading statutes is to
ascertain and give effect to the Legislature's
intent." Cadena Comercial USA Corp. v. Tex.
Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex.
2017) (internal quotation marks omitted). "[T]he
[TCPA]'s plain language is the surest guide to the
Legislature's intent." Sullivan v. Abraham,
488 S.W.3d 294, 299 (Tex. 2016) (internal quotation marks
omitted). We must presume the Legislature purposefully chose
the statute's language, intending each word used to have
a purpose. Cadena Comercial USA Corp., 518 S.W.3d at
325-26. Statutory words and phrases must be considered
"in the context of the statute as a whole."
Id. at 326.
Pyles's & the James Appellants' Construction is
Contrary to the TCPA's Text
and the James Appellants argue that Dr. Elkins's causes
of action do not "arise out of" an insurance
contract because Dr. Elkins is not seeking a remedy provided
for in the insurance policy, specifically insurance benefits,
and her theories of liability sound in common-law torts, not
in contract. These arguments are contrary to the TCPA's
plain language in at least four ways. First, in the insurance
contract exemption, the Legislature used the term "legal
action, " which is defined as "a lawsuit, cause of
action, petition, complaint, cross-claim, or counterclaim or
any other judicial pleading or filing that requests legal or
equitable relief." § 27.001(6). The definition of
"legal action" does not contain the term
"remedy." A "cause of action" consists of
the operative facts entitling the plaintiff to the relief
sought. See Loaisiga, 379 S.W.3d at 262. The relief
sought is the "remedy." Black's Law Dictionary
1320 (8th ed. 2006) (defining "remedy" as
"legal or equitable relief"). Thus, under the
insurance contract exemption, if the facts
comprising a cause of action arise out of an insurance
contract, the remedy requested need not arise out of
the insurance contract. See §§ 27.001(6),
the insurance contract exemption in 27.010(d) contrasts with
section 27.010(c), which exempts legal actions
"seeking recovery for bodily injury, wrongful
death, or survival." § 27.010(c) (emphasis added).
The insurance contract exemption in section 27.010(d) does
not exempt legal actions "seeking recovery for benefits
under" an insurance contract. Similarly, the insurance
contract exemption in 27.010(d) contrasts with other
statutory provisions, such as the Texas Tort Claims Act, that
refer to the nature of exempted claims. See, e.g.,
Tex. Civ. Prac. & Rem. Code § 101.057(2) (exempting
claims "arising out of assault, battery, false
imprisonment, or any other intentional tort"). The
insurance contract exemption simply contains no reference to
the nature of the exempted claims. Thus, the plain language
of section 27.010(d) exempts legal actions "arising out
of" an insurance contract, regardless of whether the
legal action is "seeking recovery for benefits
under" an insurance contract and regardless of whether
the nature of the claim sounds in tort or in contract.
See § 27.010(d).
Pyles's and the James Appellants' argument suggests
that the insurance contract exemption requires a legal action
to be "based on" or "brought under" an
insurance contract. But in the insurance contract exemption,
the Legislature used the phrase "arising out of."
§ 27.010(d). The qualifying phrase "arising out
of" in the insurance contract exemption contrasts with
other phrases in the TCPA the Legislature purposefully used
to qualify the term "legal action." In sections
27.003(a) and 27.005(b), the Legislature used the phrases
"relates to, " "based on, " and "in
response to" to qualify "legal action."
§§ 27.003(a), 27.005(b). And in section 27.010(d),
the Legislature used the phrase "brought under" the
Insurance Code to qualify "legal action."
27.010(d). The text of the TCPA as a whole demonstrates the
Legislature knew how to use narrower qualifying phrases, and
could have limited the insurance contract exemption to legal
actions "brought under" or "based on" an
insurance contract. Conversely, the Legislature declined to
use a broader qualifying phrase like "relates to."
In the insurance contract exemption, the Legislature
purposefully used the phrase "arising out of" and
not "based on, " "brought under, " or
"relates to." See Cadena Comercial USA
Corp., 518 S.W.3d at 325-26. Adopting Pyles's and
the James Appellants' position would require us to
legislate from the bench by judicially modifying the
TCPA's text, which we may not do. See Castleman v.
Internet Money Ltd., No. 17-0437, 2018 WL 1975039, at *3
(Tex. Apr. 27, 2018); Critz v. Critz, 297 S.W.3d
464, 472 (Tex. App.-Fort Worth 2009, no pet.).
a narrow construction of "arising out of" in
section 27.010(d)'s insurance contract exemption would
conflict with how Texas courts have construed "arise out
of" in section 27.010(b)'s commercial speech
exemption. The commercial speech exemption provides:
(b) This chapter does 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.
§ 27.010(b) (emphasis added). Other courts of appeals
have construed "arises out of" in section 27.010(b)
as relating to the defendant's motives in making the
actionable statement or engaging in the actionable conduct.
See Newspaper Holdings, Inc. v. Crazy Hotel Assisted
Living, Ltd., 416 S.W.3d 71, 88-89 (Tex. App.-Houston
[1st Dist.] 2013, pet. denied). Our sister courts have
thus concluded the Legislature used "arise out of"
in the TCPA broadly to include statements and conduct
ancillary to a commercial transaction. They have not
construed "arising out of" narrowly to mean a
statement or conduct that is based on or that comprises the
commercial transaction itself. Thus, Pyles's and the
James Appellants' construction would require arbitrarily
giving different meanings to the same phrase used in the same
section of the same statute.
The Plain Meanings of "Arising Out Of" and
the TCPA does not define the qualifying phrase "arising
out of, " we are not without guidance. When a term is
not statutorily defined, we typically look first to
dictionary definitions to ascertain the term's plain
meaning. City of Richardson v. Oncor Elec. Delivery Co.
LLC, 539 S.W.3d 252, 261 (Tex. 2018). The plain meaning
of "arise" is "[t]o originate; to stem
(from)" or "[t]o result (from)." Black's
Law Dictionary 115. The different definitions of
"arise" could support applying different tests that
the Supreme Court of Texas has articulated in different
contexts. When construing insurance contracts, the supreme
court "has held that 'arise out of' means that
there is simply a 'causal connection or relation, '
which is interpreted to mean that there is but for causation,
though not necessarily direct or proximate causation."
Utica Nat'l Ins. Co. of Tex. v. Am. Indem. Co.,
141 S.W.3d 198, 203 (Tex. 2004) (internal citation
omitted). Under the Texas Tort Claims Act, the
supreme court has construed "arise out of" as
"requir[ing] a certain nexus, " or connection.
Delaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex.
1992). Under the Worker's Compensation statute, the
supreme court has construed "arise out of"
synonymously with "originating in." State
Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 276
(Tex. 2017). And, as previously noted, our sister courts have
construed "arising out of" in the TCPA's
commercial speech exemption as requiring that we consider the
defendant's motives. See, e.g., Newspaper
Holdings, Inc., 416 S.W.3d at 88-89.
TCPA does not define "insurance contract, " but the
plain meaning of the term undoubtedly includes an insurance
policy or agreement that governs the legal rights of and
relationship between an insurer and insured regarding
insurance benefits. See Black's Law Dictionary
814 (defining insurance, generally, as a contract in which
one party promises to indemnify another against certain
risks). We further note the Legislature's use of the term
"insurance contract, " as used in the phrase
"a legal action . . . arising out of an insurance
contract, " does not limit our consideration only to
whether there is, or is not, an insurance contract. We are
aware of no cognizable cause of action for the mere existence
of an insurance contract. Other facts (e.g., facts showing a
breach or fraud), in addition to the insurance contract, are
necessary to allege a cognizable cause of action involving an
insurance contract. When considering whether a legal action
"aris[es] out of an insurance contract, " we
therefore must consider not only the insurance contract, but
also other alleged facts involving the insurance contract.
See Loaisiga, 379 S.W.3d at 262 (explaining a
"cause of action" means the underlying facts).
the TCPA's text indicates the Legislature did not intend
"arising out of" in the insurance contract
exemption to be as broad as "relates to."
Compare § 27.010(d), with §§
27.003(a), 27.005(b). Thus, "arising out of" in the
insurance contract exemption requires something more than the
mere presence of an insurance contract or a cause of action
merely having any relationship to an insurance contract. But
"arising out of" in the insurance contract
exemption requires something less than a cause of action
being "based on" or "brought under, "
"seeking benefits under, " or "seeking
recovery for breach of" an insurance contract.
Consistent with how the supreme court and our sister courts
have construed "arising out of" in various
contexts, we construe "arising out of an insurance
contract" as requiring that the insurance contract be a
"but-for" or motivating cause of the alleged facts
entitling the plaintiff to relief, or that the alleged facts
entitling the plaintiff to relief have a nexus to or
originate in a contractual relationship between an insurer
and an insured for insurance benefits.
construction is consistent with the obvious purpose of the
2013 amendments to the TCPA, which was to exempt from the
TCPA's dismissal procedure more legal actions directly
involving the business of insurance. See Fort Worth
Transp. Auth. v. Rodriguez, No. 16-0542, 2018 WL
1976712, at *9 n.6 (Tex. Apr. 27, 2018) ("[Legislative]
history may be appropriate to give context to [courts']
construction."). In 2013, the Legislature broadened the
TCPA's exemptions for legal actions involving the
business of insurance in two ways. First, the Legislature
enlarged the commercial speech exemption to cover more legal
actions related to the business of insurance. H.B. 2935, 83rd
Leg. (Tex. 2013), at § 3 (expanding the commercial
speech exemption to include "insurance services").
Second, in the 2013 amendments, the Legislature exempted from
the TCPA two additional categories of legal actions: those
"brought under the Insurance Code" and those
"arising out of an insurance contract." See
id. The TCPA's legislative history reinforces the
textual indicia of the Legislature's intent to exempt
from the TCPA's dismissal procedure additional categories
of legal actions directly involving the business of
insurance. See § 27.010(d); Sullivan,
488 S.W.3d at 299 (stating the best indication of legislative
intent is the TCPA's text).We now turn to applying
these principles to Dr. Elkins's legal actions.
our construction of the phrase "arising out of an
insurance contract" to this case, we conclude: (1) to
the extent Dr. Elkins's causes of action involve the
insurance claim made under the insurance policy, they are
"legal actions arising out of an insurance
contract"; and (2) to the extent Dr. Elkins's causes
of action involve appellants' statements to the SAPD, Dr.
Elkins did not satisfy her burden to establish they arise out
of the insurance policy.
considering Dr. Elkins's causes of action, we note a
significant difference between the two TCPA motions filed in
the trial court. Pyles's TCPA motion sought dismissal of
all of Dr. Elkins's causes of action against her. But the
James Appellants' TCPA motion sought a dismissal of Dr.
Elkins's causes of action only to the extent those legal
actions involved their statements to the SAPD. In other
words, the James Appellants have never posited that the
insurance contract exemption does not apply to Dr.
Elkins's causes of action involving the insurance claim.
Moreover, the TCPA requires us "to treat any claim by
any party on an individual and separate basis."
Better Bus. Bureau of Metro. Dall., Inc. v. Ward,
401 S.W.3d 440, 443 (Tex. App.-Dallas 2013, pet. denied). We
therefore address separately Dr. Elkins's causes of
action involving the insurance claim and her causes of action
involving appellants' statements to the SAPD. See
The Insurance Claim
first consider Dr. Elkins's causes of action against
Pyles that involve the insurance claim, which contained
Pyles's Fraud Examination Report. According to Dr.
Elkins's pleadings and evidence, Pyles prepared the Fraud
Examination Report for the primary purpose of submitting the
insurance claim. Pyles did not dispute Dr. Elkins's
allegations and evidence. Instead, Pyles's motion states,
"The Practice is insured by Travelers and filed a claim
with Travelers." Her affidavit states, "Travelers
was provided with a copy of the Fraud Examination Report,
" and "Travelers ultimately paid the Practice on
its insurance claim related to Dr. [Elkins]'s
to the pleadings and evidence, Pyles would not have made the
complained-of statements in the insurance claim if there were
no insurance policy, and the insurance contract motivated
Pyles's allegedly defamatory, disparaging, and damaging
statements that Dr. Elkins committed fraud and theft. The
insurance policy has a close nexus to the facts Dr. Elkins
alleges entitle her to relief; in addition to the insurance
contract being a but for and motivating cause of the
insurance claim, the complained-of statements to Travelers
comprised the insurance claim that invoked an insured's
legal rights under an insurance contract. The transaction was
pursuant to the insurance policy, and the insurer-insured
relationship was the context in which the complained-of
statements were made. Thus, those statements originated in
the relationship between an insured and insurer under a
contract for insurance benefits. Furthermore, it would be
nearly impossible for Dr. Elkins to explain her case to a
jury without reference to the insurance policy, and she would
be entitled to rely on the insurance policy as proof of her
claims. The insurance policy provides a theory of the
defendants' motives for publishing allegedly false
statements; explains why those statements were made to
Travelers; and explains Travelers' response of further
investigating Dr. Elkins, which Dr. Elkins complains
contributed to her damages.
case can be contrasted with Tervita, LLC v.
Sutterfield, 482 S.W.3d 280 (Tex. App.- Dallas 2015,
pet. denied). In Tervita, the plaintiff alleged his
employer retaliated against him for filing a worker's
compensation claim and made a false representation to him
about what benefits were available to him under the insurance
policy. See id. at 282. The complained-of statement
in Tervita did not originate in any communication
between an insurer and insured under an insurance policy; the
statement originated in the context of an employer-employee
relationship and merely related to an insurance policy.
Although Pyles relies on Tervita to support her
position, the Tervita court did not define the
phrase "arising out of" or state what test courts
should apply to determine whether a legal action arises out
of an insurance contract. Id. at 285-86. We are not
persuaded that Tervita is inconsistent with our
holding or requires a different outcome in this
the insurance policy is a but for and motivating cause of the
insurance claim, and that the insurance claim had a nexus to
the insurance policy and originated in the contractual
relationship between an insurer and an insured for insurance
benefits. Thus, Dr. Elkins's causes of action against
Pyles involving the insurance claim are legal actions
"arising out of an insurance contract." §
27.010(d). We must therefore affirm the trial court's
order as to Dr. Elkins's causes of action against Pyles
involving the Fraud Examination Report and the insurance
The SAPD Report
and the James Appellants argue Dr. Elkins failed to prove
their statements to the SAPD arose out of the insurance
policy. We agree. Dr. Elkins pled in her response to the TCPA
motions that the only reason Pyles and the James Appellants
made statements to SAPD is because the insurance policy
required them to do so. However, Dr. Elkins had the burden to
establish the applicability of the insurance-contract
exemption. See Tervita, LLC, 482 S.W.3d at 282. Dr.
Elkins did not produce the insurance contract, did not
provide any other evidence to support her allegation about
the insurance policy, and expressly stated her allegation
about the insurance policy was based only "on
information and belief, " which amounts to no evidence.
See Day Cruises Mar., L.L.C v. Christus Spohn Health
Sys., 267 S.W.3d 42, 54 (Tex. App.-Corpus Christi 2008,
pet. denied). We hold Dr. Elkins failed to satisfy her burden
to establish that the insurance exemption applies to her
causes of action involving appellants' statements to the
Actions Not Exempted by the TCPA
than the insurance contract exemption, Dr. Elkins did not
dispute in the trial court, and does not dispute on appeal,
that the TCPA otherwise applies to her legal actions against
Pyles and the James Appellants. On appeal, Pyles and the
James Appellants argue their statements to SAPD, even if
false, were an exercise of their right of petition, a First
Amendment right listed in the TCPA. We agree. See Murphy
USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263,
at *3-*4 (Tex. App.-Tyler Oct. 5, 2016, no pet.) (mem. op.)
(TCPA applies to statements made to police). We therefore
proceed to consider whether Dr. Elkins met her burden under
TCPA applies, the plaintiff has the burden to present clear
and specific evidence of a prima facie case for each element
of each claim covered by the TCPA. See In re Lipsky,
460 S.W.3d at 586. Clear and specific evidence of a prima
facie case for an element "refers to evidence sufficient
as a matter of law to establish a given fact if it is not
rebutted or contradicted." Id. at 590. "It
is the minimum quantum of evidence necessary to support a
rational inference that the allegation of fact is true."
Id. (internal quotation marks omitted). The TCPA
"does not impose a higher burden of proof than that
required of the plaintiff at trial." Id. at
591. When reviewing the record, we consider the pleadings and
evidence in the light most favorable to Dr. Elkins. See
Spencer, 2017 WL 993093, at *4.
of the following subsections, we discuss the evidence of each
element of each claim as the evidence pertains to Dr. James,
Jean, and Pyles individually. See Ward, 401 S.W.3d
at 443. On appeal, the James Appellants do not challenge the
Practice's vicarious liability for the acts of Dr. James,
Jean, or Pyles. We therefore address each claim based on the
individual's conduct and conclude with a summation of the
claims the trial court should have dismissed and the claims
the trial court properly did not dismiss.
Intentional Infliction of Emotional Distress
recover damages for intentional infliction of emotional
distress, a plaintiff must establish that: (1) the defendant
acted intentionally or recklessly; (2) the defendant's
conduct was extreme and outrageous; (3) the defendant's
actions caused the plaintiff emotional distress; and (4) the
resulting emotional distress was severe."
Hoffman-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438,
445 (Tex. 2004).
and the James Appellants challenge the "extreme and
outrageous" element of Dr. Elkins's intentional
infliction of emotional distress claims. "Whether a
defendant's conduct is 'extreme and outrageous'
is a question of law." Bradford v. Vento, 48
S.W.3d 749, 758 (Tex. 2001). "The mere fact that a
defendant's conduct is tortious or otherwise wrong does
not, standing alone, necessarily render [the conduct]
'extreme and outrageous.'" Id.
Moreover, the "extreme and outrageous conduct"
element must "not be extended to circumvent the
limitations placed on the recovery of mental anguish damages
under more established tort doctrines." See Standard
Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d
62, 68 (Tex. 1998); see also Creditwatch, Inc. v.
Jackson, 157 S.W.3d 814, 816 (Tex. 2005)
("intentional infliction of emotional distress is a
'gap-filler' tort never intended to supplant or
duplicate existing statutory or common-law remedies").
that although Pyles's and the James Appellants'
alleged conduct of making false statements to the police may
be considered wrong and tortious, the alleged conduct does
not exceed conduct covered by other torts. See Draker v.
Schreiber, 271 S.W.3d 318, 325 (Tex. App.-San Antonio
2008, no pet.) (intentional infliction of emotional distress
claim unavailable where gravamen of plaintiff's claim was
defamation); Thrift v. Hubbard, 974 S.W.2d 70, 77-81
(Tex. App.-San Antonio 1998, pet. denied) (explaining
malicious criminal prosecution is a tort available to recover
for emotional distress when a private individual makes a
false police report resulting in prosecution). We therefore
hold Dr. Elkins failed to meet her burden regarding her
intentional infliction of emotional distress
and the James Appellants contend Dr. Elkins's defamation
claims must be dismissed because Dr. Elkins failed to present
clear and specific evidence that they made the allegedly
defamatory statements with "actual malice."
"Defamation's elements include (1) the publication
of a false statement of fact to a third party, (2) that was
defamatory concerning the plaintiff, (3) with the requisite
degree of fault, and (4) damages, in some cases." In
re Lipsky, 460 S.W.3d at 593. The requisite degree of
fault depends on the status of the plaintiff; "[a]
private individual need only prove negligence, whereas a
public figure or official must prove actual malice."
Id. However, even where the plaintiff is a private
individual, "[i]f the circumstances support application
of [a] qualified privilege, the plaintiff must prove that the
defendant acted with actual malice, rather than mere
negligence, in publishing the statement." Espinosa
v. Aaron's Rents, Inc., 484 S.W.3d 533, 543 (Tex.
App.-Houston [1st Dist.] 2016, no pet.).
and the James Appellants argue the requisite degree of fault
Dr. Elkins must prove is actual malice because reporting a
crime to the police is qualifiedly privileged, and a
plaintiff must show actual malice to overcome the qualified
privilege. Dr. Elkins does not argue on appeal that the
statements to SAPD are not qualifiedly privileged, and during
the hearing on the TCPA motions, Dr. Elkins "agree[d]
that the qualified privilege applies in talking to
police." We agree the statements to SAPD are qualifiedly
privileged. See Pease v. Bembry, No. 03-02-00640-CV,
2004 WL 1574243, at *2 (Tex. App.-Austin July 15, 2004, no
pet.) (mem. op.) (reporting crime is qualifiedly privileged).
We therefore proceed to analyze whether Dr. Elkins met her
burden regarding the actual malice element.
malice in this context does not mean bad motive or ill will
but rather knowledge of, or reckless disregard for, the
falsity of a statement." Greer v. Abraham, 489
S.W.3d 440, 443 (Tex. 2016). To establish reckless disregard,
a plaintiff must show the defendant "entertained serious
doubts as to the truth of his [statement]." Huckabee
v. Time Warner Entm't Co. L.P., 19 S.W.3d 413, 420
(Tex. 2000) (quoting St. Amant v. Thompson, 390 U.S.
727, 731 (1968)). "[T]he mere failure to investigate the
facts, by itself, is no evidence of actual malice."
Bentley v. Bunton, 94 S.W.3d 561, 595 (Tex. 2002).
actual malice, Dr. Elkins's sole argument on appeal is,
and her primary contention in the trial court was, that Dr.
James, Jean, and Pyles reviewed only three years of her
payment records and should have considered records during the
entire time she worked for the Practice. We agree with Pyles
and the James Appellants that an inadequate investigation is
alone insufficient to show actual malice. See id.
However, our standard of review is de novo, and we must
determine whether appellants have demonstrated that the trial
court committed reversible error based on the pleadings and
evidence before the trial court when the trial court made its
ruling. See Reyna, 2015 WL 4273265, at *2. Applying
this standard, we conduct a de novo review of the pleadings
and evidence of actual malice that was before the trial
court. See id.
Elkins produced Dr. James's written statement to the
SAPD, wherein Dr. James states Dr. Elkins was entitled under
her employment contract only to 30% of her net production and
that she stole money by taking 30% of gross production. Dr.
Elkins produced her affidavit in which she swore her
employment contract provided she was to be paid 30% of gross
production. She also produced an email from Jeff Barrish, the
Practice's accountant, stating Dr. Elkins's
compensation package provides "she receives 30% . . . of
production." Dr. Elkins's evidence, viewed in a
light most favorable to her, shows Dr. James falsely stated
to SAPD that Dr. Elkins was to be paid only 30% of net
production. See Spencer, 2017 WL 993093, at *4. We
therefore consider whether Dr. Elkins produced clear and
specific evidence that, when Dr. James stated that Dr. Elkins
was to be paid only 30% of net production under her
employment contract, Dr. James either knew his statement was
false or had a reckless disregard for the falsity of his
Elkins presented evidence that the employment contract was
one paragraph, Dr. James executed the contract by signing it
(which Dr. James admits in his affidavit), the contract was
given to Dr. James's attorney, and the contract
mysteriously disappeared. Dr. James's affidavit states he
hired Dr. Elkins. Furthermore, Pyles's and Jean's
affidavits demonstrate they both relied on Dr. James's
purported knowledge of what was in the employment contract. A
jury could reasonably infer that Dr. James, who hired Dr.
Elkins and signed her one-paragraph employment contract,
actually knew the terms of Dr. Elkins's compensation
under the contract. Se ...