Damien Herrera and Blaine Castle v. Judy Stahl and Sue Hensley, 441 S.W.3d 739

Background

Plaintiffs (Stahl and Hensley) are condominium owners who sued the Chesapeake Condominium Owners Association for various claims and later amended to add officers Damien Herrera (president) and Blaine Castle (secretary) individually, alleging defamation among other claims.
Defendants moved to dismiss the defamation claims under the Texas Citizens’ Participation Act (TCPA/Act). Trial court held a non‑evidentiary hearing, took the matter under advisement, and denied the motions to dismiss. Defendants appealed.
Plaintiffs pleaded multiple specific allegedly defamatory statements by each defendant (name‑calling at meetings, reports to SAPD, emails ridiculing plaintiffs, public comments). Plaintiffs submitted affidavits corroborating some statements and occurrences.
Herrera and Castle each filed affidavits asserting their statements were made in their capacities as association officers, in association meetings or to public officials, relating to association business, and therefore protected by the Act (association and petition clauses); both denied defamation.
The trial and appellate inquiry focused first on whether defendants met the TCPA movant’s initial burden to show by a preponderance that the suit is based on, relates to, or is in response to their exercise of rights to petition or associate. The court considered whether defendants’ evidence was more than conclusory.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants met the TCPA initial burden that the defamation suit is based on, relates to, or responds to exercise of the right of association	Plaintiffs argued defendants’ statements were defamatory and not protected; affidavits and factual allegations show actionable speech	Herrera/Castle contended their statements were communications made in association meetings and to public officials as officers defending common association interests	Held: Defendants failed to meet the initial burden — their evidence was conclusory and not probative of specific common interests or how statements related to them; denial of dismissal affirmed
Whether defendants met the TCPA initial burden as to exercise of the right to petition (communications in or pertaining to a judicial proceeding)	Plaintiffs argued the alleged statements were reports to members or public, not communications in or about judicial proceedings	Defendants argued statements related to reporting on a Special Commissioner’s Hearing (a judicial proceeding) and communications with public officials	Held: Even assuming the hearing was a judicial proceeding, the alleged statements were made when reporting to association members and thus were not communications "in" or "pertaining to" the proceeding; defendants did not meet their burden
Whether defendants’ affidavits and submissions provided probative (non‑conclusory) evidence under the TCPA	Plaintiffs emphasized defendants’ affidavits were conclusory and lacked underlying detail tying statements to protected activity	Defendants relied on officer status, general descriptions of association interests, and categorical assertions of truth and official context	Held: Affidavits were conclusory; conclusory assertions are not probative and failed to satisfy the TCPA initial burden
Whether appellate court must address plaintiffs’ prima facie showing under TCPA §27.005(c)	Plaintiffs urged that the case proceed and contend prima facie evidence exists	Defendants argued dismissal warranted if initial burden met	Held: Because defendants did not satisfy the initial burden, court did not reach whether plaintiffs met the clear‑and‑specific prima facie standard; affirmed trial court denial

Key Cases Cited

Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.—Texarkana 2013) (discussing TCPA purpose and Anti‑SLAPP context)
Rickets v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (definition of preponderance of the evidence)
Murff v. Pass, 249 S.W.3d 407 (Tex. 2008) (discussing evidentiary standards)
R & R Contractors v. Torres, 88 S.W.3d 685 (Tex. App.—Corpus Christi 2002) (use of preponderance definition)
The Upjohn Co. v. Freeman, 847 S.W.2d 589 (Tex. App.—Dallas 1992) (preponderance standard cited)
Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (standard of review for TCPA dismissal reviewed de novo)
Fitzmaurice v. Jones, 417 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 2013) (conclusory evidence insufficient in TCPA context)
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (conclusory expert opinions not probative)
Lefton v. Griffith, 136 S.W.3d 271 (Tex. App.—San Antonio 2004) (conclusory evidence of damages insufficient)