William Francis and Incline Energy Partners, L.P. v. Phoenix Capital Group Holdings, LLC, 05-22-01260-CV

Background

Phoenix and Incline are competitors in oil and gas; William Francis is Incline’s managing partner. Incline investigated alleged involvement of Adam Ferrari (a consultant to Phoenix) and obtained records of Ferrari’s 2019 guilty plea to forgery (deferred sentence; records later sealed and the charge dismissed).
On June 17, 2021 Francis emailed Crystal Taylor (a relative/agent of a landowner), stating among other things that “their CEO was arrested and convicted for forging a mineral owners signature…,” and included links to news articles about Ferrari.
Phoenix sued (June 2022) for defamation (including defamation per se), business disparagement, tortious interference with contract/prospective relations, unfair competition, and civil conspiracy.
Francis and Incline moved to dismiss under the Texas Citizens Participation Act (TCPA). The trial court partially granted/partially denied the motion and awarded $10,000 in fees; defendants appealed.
The Court of Appeals held the Taylor email was a communication on a matter of public concern, reversed the denial of dismissal for disparagement/defamation (except defamation per se), tortious interference with prospective contract, conspiracy, and unfair competition, affirmed denial as to defamation per se, and remanded for further proceedings (including privilege and attorney’s fees).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether the Taylor email is an "exercise of free speech" (matter of public concern) under the TCPA	Phoenix: private, between private parties about a private transaction, not a public concern	Francis/Incline: accusal of criminal conduct (forgery) implicates public concern	Held: email concerns alleged criminal activity and thus constitutes a matter of public concern; TCPA step one satisfied
2. Whether Phoenix established prima facie damages for defamation, business disparagement, tortious interference with prospective contract, conspiracy, and unfair competition	Phoenix: email harmed reputation, disrupted deal with Krystal family, caused loss of sale	Francis/Incline: deed to Incline predated the email; Phoenix offers no clear evidence of damages or that email caused the loss	Held: Phoenix failed to show clear and specific evidence of damages for these claims; those claims are dismissed under the TCPA
3. Whether Phoenix made a prima facie showing on defamation per se	Phoenix: statement accusing Phoenix’s CEO of felony conduct is defamatory per se; damages presumed	Francis/Incline: contend gist is true or defenses apply	Held: Phoenix made prima facie showing (publication, defamatory of plaintiff, requisite fault); defamation per se survives TCPA step two; case remanded for consideration of defendants’ privilege affirmative defense
4. Whether the trial court erred in awarding attorney’s fees and on evidentiary rulings	Phoenix: fee award and evidentiary rulings appropriate	Francis/Incline: trial court abused discretion and relied on improper evidence	Held: appellate disposition required remand for reconsideration of attorney’s fees; evidentiary objections not resolved here due to disposition

Key Cases Cited

In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA burden-shifting framework and prima facie standard)
D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017) (negligence standard for fault and evaluation of investigatory suspicion in defamation context)
Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (private communications can still be matters of public concern)
Waste Mgmt. of Texas, Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014) (corporations may recover for defamation per se)
Mireskandari v. Casey, 636 S.W.3d 727 (Tex. App.—Dallas 2021) (de novo review and evidentiary scope for TCPA appeals)
Krasnicki v. Tactical Entm’t, LLC, 583 S.W.3d 279 (Tex. App.—Dallas 2019) (purpose of the TCPA as anti‑SLAPP protection)