Nicole Welch and Restore Hyper Wellness and Cryotherapy, an Entity of Austin Cryo Ventures, LLC v. Kymberly See, 03-22-00037-CV

Plaintiff Kymberly See, a registered nurse and former Restore employee, sued Restore Hyper Wellness and Nicole Welch for libel (libel per se and per quod) and tortious interference arising from statements Restore/Welch submitted to the Texas Board of Nursing during the Board’s investigation of a January 30, 2020 patient incident.
Restore/Welch produced incident reports and subpoenaed materials to the Board; See contends those communications contained false statements (e.g., that she acted outside Restore protocol, that EMS transported the patient, and that she was placed on leave).
Restore and Welch moved to dismiss under the Texas Citizens Participation Act (TCPA), claiming their communications to the Board were protected petitioning/free‑speech activity. The trial court denied the motion.
On appeal the Third Court of Appeals reviewed de novo whether the TCPA applied and whether See established a prima facie case for each claim under the TCPA’s clear‑and‑specific evidence standard.
The court held the TCPA applied (communications to the Board qualify as petitioning), but concluded See failed to present clear‑and‑specific evidence on essential elements (notably damages/causation); the court reversed and remanded for dismissal under the TCPA and for fee determination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the TCPA applies	See: statements to the Board were knowingly false so not protected	Restore/Welch: communications to the Board are petitioning and fall within TCPA	Held: TCPA applies — Board communications are exercise of right to petition; truth goes to step two
Whether statements are defamation per se	See: statements that she acted outside protocol and was suspended were false and injurious to her profession	Restore/Welch: statements about protocol and investigation are not the kind that impeach a professional’s peculiar skill	Held: Not defamation per se (statements do not impute lack of essential nursing skill)
Whether See proved defamation per quod (damages) / prima facie evidence	See: affidavit alleges unemployment, loss of a NuWest contract, and lost future contracts caused by defendants’ statements	Restore/Welch: See’s affidavit is conclusory; documentary evidence was not properly authenticated; no clear causal link	Held: See failed to provide clear‑and‑specific evidence of actual damages or causation; affidavit conclusory; dismissal required
Whether See proved tortious interference (existing/prospective contracts)	See: same evidence shows defendants’ statements caused loss of existing and prospective contracts	Restore/Welch: no proof of a valid contract interference causal link or actual damages	Held: Failed to establish prima facie damages/causation for tortious‑interference claims; TCPA dismissal required

In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA three‑step analysis and the "clear and specific" evidentiary standard)
Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (statutory interpretation of TCPA; review de novo)
Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (defamation per se requires imputation of lack of a peculiar or essential professional skill)
Bedford v. Spassoff, 520 S.W.3d 901 (Tex. 2017) (statements disparaging compliance with employer protocol are not necessarily defamation per se)
Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings determine the basis of legal action for TCPA threshold analysis)
WFAA‑TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (elements of defamation)