delivered the opinion of the Court.
The Texas Citizens Participation Act (TCPA)
Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence.
I. Background and Procedural History
Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys’ property.
A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. They contacted a well-servicing company, which identified the problem as “gas locking,” a condition typically associated with an excess of natural gas in the ground water. A submersible pump’s ability to transport water from a well can be affected when too much gas is in the water.
Both the EPA and Railroad Commission began investigating Lipsky’s complaints. The EPA initially concluded that Range’s production activities had contributed to the gas in the Lipskys’ well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property.
The Railroad Commission completed its investigation a few months later. Although invited to participate in the Commission’s evidentiary hearing, the Lipskys declined. The Commission thereafter concluded that Range’s operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission’s decision in the media and continued to blame Range, pointing to the EPA’s action and his expert’s opinions.
The Lipskys thereafter sued Range and others involved in developing their residential area. As to Range, they alleged that its fracking operations near their property were negligent, grossly negligent, and a nuisance. They asserted that Range’s operations contaminated their water well, causing the water to become flammable and their home uninhabitable. Range answered the suit and moved to dismiss all claims as an improper collateral attack on the Railroad Commission’s ruling. Range also filed a counterclaim against the Lipskys and a third-party claim against Rich (the Lipskys’ environmental consultant) alleging defamation, business disparagement, and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range’s counter-attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the Texas Citizens Participation Act. Tex. Civ. Prac. & Rem. Code § 27.005.
The trial court granted Range’s motion to dismiss, agreeing that the Lipskys’ claims were an improper collateral attack on the Commission’s determination. The court also declined to dismiss Range’s claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The Lipskys and Rich attempted an interlocutory appeal from this latter ruling, but the court of appeals dismissed the appeal for want of jurisdiction.
The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range’s claims against Lipsky’s wife, Shy-la, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims.
II. The Texas Citizens Participation Act
As already mentioned, the Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. See House Comm, on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant’s valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show “by a preponderance of the evidence” that the plaintiffs claim “is based on, relates to, or is in response to the [movant’s] exercise of:. (1) the right of free speech;
In determining whether the plaintiffs claim should be dismissed, the court is to consider the pleadings and any supporting and opposing affidavits. Id. § 27.006(a). Moreover, the motion to dismiss ordinarily suspends discovery, id. § 27.003(c), although the statute leaves the possibility for a court to order limited discovery for “good cause” as it relates to the motion itself, id. § 27.006(b). Within defined time limits, the court must then rule on the motion and must dismiss the plaintiffs claim if the defendant’s constitutional rights are implicated and the plaintiff has not met the required showing of a prima facie case. Id. § 27.005. The determination is to be made promptly, ordinarily within 150 days of service of the underlying legal action. See id. §§ 27.003(b), .004(a), .005(a).
In this proceeding, only the second step is at issue-the question being whether the plaintiff has met its burden of “establishing] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). The parties disagree about the evidentiary burden this language imposes. Lipsky argues that the phrase “clear and specific evidence” elevates the evidentiary standard, requiring Range to produce direct evidence as to each element of its claim. Range, on the other hand, argues that circumstantial evidence and rational infer-enees may be considered by the court in determining whether clear and specific evidence exists and that the TCPA’s prima-facie-case requirement does not impose a higher or unique evidentiary standard. The dispute mirrors a similar disagreement among the courts of appeals.
Some courts, focusing on the requirement of “clear and specific evidence,” have interpreted the statute to require a heightened evidentiary standard, unaided by inferences. See Shipp v. Malouf,
The statute does not define “clear and specific evidence,” but the courts that have interpreted the phrase to impose a heightened evidentiary standard have purportedly found support in the case law. Those courts invariably rely on two cases predating the Act for the proposition that “clear and specific evidence” means “evidence unaided by presumptions, inferences or in-tendments.” See, e.g., Sierra Club,
Both cases involved fraud claims. In McDonald, the trial court granted summary judgment on the fraud claim, and the appellate court affirmed, concluding no material fact issue existed as to one or more of the claim’s essential elements. McDonald,
As to appellants’ claim of fraud, the burden was upon them to raise a fact issue as to its existence by competent evidence. This burden could not be discharged in the absence of a showing that all of the elements of actionable fraud were present. Mere conjecture or evidence which does not necessarily tend to that conclusion is insufficient. Charges of fraud must be established by clear and specific evidence unaided by presumptions, inferences or intendments. Until or unless fraud is proved, the presumption is in favor of the fairness of a transaction and specific acts of fraud must be both alleged and proved by appellants in response to appellee’s motion for summary judgment.
Id. (emphasis added).
The context establishes that the court was not attempting to define “clear and . specific evidence” to exclude circumstantial evidence or to require only direct evidence to create a fact question. Such a definition would, of course, have been erroneous “[s]ince intent to defraud is not susceptible to direct proof [and] invariably must be proven by circumstantial evidence.” Spoljaric v. Percival Tours, Inc.,
Circumstantial evidence can, -of course, be vague, indefinite, or inconclusive, but it is not so by definition. Rather,
The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderanee-of-the-evidence standard, that is, a fact-finder’s determination that the plaintiffs version of the events is more likely than not true. Some civil claims, including some defamation claims, elevate the evidentiary standard to require proof by clear-and-convincing evidence. Bentley v. Bunton,
Clear and specific evidence is not a recognized evidentiary standard. Although it sounds similar to clear and convincing evidence, the phrases are not legally synonymous. The Legislature well understands the elear-and-convincing-evidence standard and uses that standard when it so intends. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 18.033(c), 41.001(2), 41.003(b), (c), 134A.004(b), 147.122.
All evidentiary standards, including clear and convincing evidence, recognize the relevance of circumstantial evidence. In fact, we have acknowledged that the determination of certain facts in particular cases may exclusively depend on such evidence. See, e.g., Bentley,
The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. See Tex. Civ. Prac. & Rem. Code § 27.002 (balancing “the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law” against “the rights of a person to file meritorious lawsuits for demonstrable injury”). To accomplish its purpose, the Act endorses a summary process, requiring judicial review of the pleadings and limited evidence, typically within 150 days following service. Tex. Civ. Prac. & Rem. Code
As discussed, neither the Act nor the common law provides a definition for “clear and specific evidence.”
The statute, however, requires not only “clear and specific evidence” but also a “prima facie case.” In contrast to “clear and specific evidence,” a “prima facie' case” has a traditional legal meaning. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Simonds v. Stanolind Oil & Gas Co.,
The TCPA’s direction that a claim should not be dismissed “if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question” thus describes the clarity and detail required to avoid dismissal. Tex. Civ. Prac. & Rem. Code § 27.005(c) (emphasis added). Courts are further directed to make that determination early in the proceedings, typically on the basis of the pleadings and affidavits. But pleadings that might suffice in a case that does not implicate the TCPA may not be sufficient to satisfy the TCPA’s “clear and specific evidence” requirement.
Our procedural rules merely require that the pleadings provide' fair notice of the claim and the relief sought such that the opposing party can prepare a defense. See Tex. R. Civ. P. 45 & 47. Even the omission of an element is not fatal if the cause of action “may be reasonably inferred from what is specifically stated.” Boyles v. Kerr,
Fair notice of a claim under our procedural rules thus may require something less than “clear and specific evidence” of each essential element of the claim. Because the Act requires more, mere notice pleading — that is, general allegations that merely recite the elements of
Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. With that understanding of the Act’s requirements, we turn to pleadings and evidence in this case.
III. Steven Lipsky’s Petition
Range sued Steven Lipsky, alleging defamation, business disparagement, and civil conspiracy. The court of appeals found no evidence of a civil conspiracy, but some evidence of the other claims, concluding “that the trial court did not abuse its discretion by denying Steven Lipsky’s motion to dismiss Range’s defamation and business disparagement claims.”
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc.,
A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage,
To defend against Lipsky’s dismissal motion, Range’s burden under the TCPA was to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c). “To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages
The court of appeals disagreed. It concluded that an affidavit from Range’s senior vice president was sufficient proof of Range’s damages, at this stage, to defeat Lipsky’s motion to dismiss. See
Range’s vice president averred in general terms that Lipsky’s statements caused Range to suffer “direct pecuniary and economic losses and costs, lost profits, loss of its reputation,-and loss of goodwill in the communities in which it operates ... in excess of three million dollars.”
Lipsky argues, however, that the affidavit is conclusory and therefore insufficient to satisfy the TCPA’s requirement of “clear and' specific evidence,” and we agree. Bare, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA. See Elizondo
Range, however, asserted not only business disparagement but also defamation. Corporations and other business entities have reputations that can be libeled apart from the businesses they own, and such entities can prosecute an action for defamation in their own names. See Waste Mgmt. of Tex.,
B. Defamation
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. WFAA-TV, Inc. v. McLemore,
Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. Hancock,
(1) The Falsehoods
Lipsky complains that the trial court should have dismissed the defamation claim against him because Range failed to establish the defamatory nature of his alleged statements. The court of appeals listed the following published statements as potentially defamatory to Range:
• Range’s drilling went under the Lip-skys house while omitting that Range’s wellbore was over a mile below the surface;
• the Lipskys’ well no longer pumped water (when it actually could);
• the Lipskys had found unnatural detergents in the water;
• the Lipskys could not live in their • home (although they continued to do so);
• Range would eventually “own” the Lipskys’ home (which implied that Range was responsible for contaminating the Lipskys’ water source and would be liable for doing so);
• Range was politically powerful and had prevailed with the Railroad Commission through corruption, even though the Railroad Commission had considered extensive evidence to support its deci- ' sion and the Lipskys had not participated in the Railroad Commission’s hearing;
• the Lipskys could literally light their water on fire, and the water was unsafe to drink;
• Range’s drilling operations contaminated the water (even though the Railroad Commission had found that the operations had not); and
• Range treated the Lipskys like “criminals.”
“It is well settled that the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person’s perception of the entirety of a publication and not merely on individual statements.” Bentley,
The Commission’s investigation coincided with the EPA’s, beginning in August 2010, after Lipsky complained to the Abilene District Office about gas in his water well. That month, the Commission collected water and gas samples from the Lip-skys’ well, asked Range to test the mechanical integrity of its wells, and further obtained a gas analysis from Range’s operations for comparison with the gas in the Lipskys’ well. After comparing the respective gas samples, the Abilene District Office found them to have “distinct characteristics,” but the Commission nevertheless continued its investigation.
Meanwhile, the EPA decided that Range’s two gas wells were an “imminent and substantial endangerment to a public drinking water aquifer,” and issued an Emergency Administrative Order to that effect on December 7, 2010. The next day,
After hearing testimony on the groundwater investigation and Range’s operations in the area, as well as expert testimony on geology, hydrogeology, mi-croseismic analysis, hydraulic fracturing, geochemical gas fingerprinting, and petroleum engineering, the Commission’s hearing examiners concluded that Range’s gas wells had not contributed to the contamination of any domestic water wells. The examiners concluded instead that the Strawn formation was the most likely source of the gas in the Lipskys’ well.
The Strawn is a shallow formation, lying directly beneath the Trinity aquifer at a depth of 200 to 400 feet. There had been gas production from the Strawn in the mid-1980s about a mile from Range’s current wells. Range’s two wells, however, did not produce from the Strawn. They were instead completed in the Barnett Shale, a formation lying more than a mile below the aquifer. And although Range used hydraulic fracturing of the Barnett Shale to extract its gas, the examiners found that this caused no communication with the aquifer, as nearly a mile of rock remained between the highest fracture point and the aquifer. The examiners further confirmed the mechanical integrity of Range’s wells, finding its production casings properly cemented and in compliance with the Texas Commission on Environmental Quality’s recommendations for water quality protection. The examiners noted that gas contamination in water wells throughout the county had occurred since at least 2008, several years before Range drilled the two wells in question.
Adopting the examiners’ findings and conclusions, the Railroad Commission signed its final order on March 22, 2011. Afterward, Lipsky was quoted in news articles to state that the Commission’s decision was “ridiculous,” the product of a “corrupt system,” and that “it was kind of sad.” Although he had not participated in the hearing, he referenced the earlier EPA order and his own expert, who suspected that the contamination resulted from Range’s nearby drilling. Thus, despite the Commission’s conclusions to the contrary, Lipsky continued to maintain that Range was responsible for contaminating the aquifer and his domestic water well. The court of appeals concluded that there was some evidence of a defamatory statement concerning Range sufficient to defeat Lip-sky’s TCPA motion to dismiss, and we agree. His statements were not presented as opinion but were “sufficiently factual to be susceptible of being proved true or false.” Milkovich v. Lorain Journal Co.,
(2) The Damages
Lipsky also argues that the trial court should have dismissed Range’s defamation claim because no evidence established that his remarks caused the company specific damages. The court of appeals again disagreed. It concluded that the affidavit from Range’s senior vice president, which discussed Range’s losses in very general terms, was sufficient to defeat Lipsky’s TCPA motion to dismiss. See
Range argues, however, that it did not have to submit proof of special damages as part of its defamation claim because Lipsky’s statements were defamato
The common law distinguishes defamation claims as either per se or per quod.
Range argues that Lipsky’s remarks in this case were defamatory per se because they reflected on Range’s fitness and abilities as a natural gas producer. To qualify as defamation per se under this category the disparaging words must affect the plaintiff in some manner that is peculiarly harmful to the plaintiffs trade, business, or profession and not merely upon the plaintiffs general characteristics. See id. at 66-67 (noting that a statement injures one in his profession when it would “adversely affect his fitness for the proper conduct” of the business). Range submits that by being falsely branded as a polluter and a threat to public health and safety, Lipsky has portrayed Range as incompetent, even reckless, as a gas producer, thereby injuring the company’s reputation.
Environmental responsibility is an attribute particularly important to those in the energy industry — none more so than ' natural gas producers, such as Range, who employ horizontal drilling and hydraulic fracturing in their business. Accusations that Range’s fracking operations contaminated the aquifer thus adversely affect the perception of Range’s fitness and abilities as a natural gas producer. As defamation per se, damages to its reputation are presumed, although the presumption alone will support only an award of nominal damages. Salinas,
IV. Range’s Petition
The court of appeals concluded that the TCPA required the dismissal of
Range complains that the court of appeals failed to give it the benefit of rational inferences drawn from the voluminous evidence it presented. It argues that Rich had a history of publicly blaming drilling, in general — and Range in particular — for contaminating the environment and that she devised a “strategy” to get the EPA to investigate the Lipsky contamination claim, which she documented in an email to the Lipskys. Range further complains that Rich played a role in the distribution of Lipsky’s “misleading” garden hose video in furtherance of the conspiracy to defame and disparage Range.
The court observed, however, that Rich, although mentioning Lipsky’s video to the EPA, had not used it to mislead the agency but rather explained that the hose had been attached to the well vent.
We agree that no clear and specific evidence establishes a prima facie case that Shyla Lipsky or Alisa Rich published any defamatory remarks concerning Range or conspired with Steven Lipsky “to publicly blame Range for the contamination.” Id. The court of appeals accordingly did not abuse its discretion in holding that the TCPA required the dismissal of Range’s claims against Steven Lipsky’s wife and environmental consultant and Range’s conspiracy claim against all parties.
[[Image here]]
The respective petitions filed in this Court by Steven Lipsky and by Range Production Co. and Range Resources Corp. are denied.
Notes
. See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Gen. Laws 961 (stating that "Act may be cited as the Citizens Participation Act”).
. At the time, the courts of appeals disagreed about whether the Texas Citizens Participation Act granted an interlocutory appeal from a signed order denying dismissal. Compare Jennings v. WallBuilder Presentations, Inc.,
.The court of appeals concluded that the trial court should have dismissed the civil conspiracy and aiding and abetting claims against all defendants, including Steven Lipsky. Id. at 551-52.
. The "right of free speech” refers to communications related to "a matter of public concern” which is defined' to include an issue related to: "(A) health or safety: (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.” Id. § 27.001(3), (7)(A)-(E).
. The "right to petition” refers to a wide range of communications relating to judicial,
. The “right of association” refers to people "collectively expressing], promoting], pursuing], or defending] common interests.” Id. § 27.001(2).
. The court wrote:
Charges of fraud must be established by clear and specific evidence, which may not be aided by presumptions or inferences, or intendment. The evidence and findings of the representations complained of in this case are vague, indefinite, and inconclusive, and, moreover, are so qualified by the testimony of appellee and her sister-indaw, upon which her case rests, as to rob them of the implications of active fraud necessary to destroy a written contract.
S. Cantu & Son,
. The phrase "clear and specific evidence” appears in only three statutes. See Tex. Civ. Prac. & Rem. Code ⅜ 22.025, 27.005(c); Tex. Code Crim Proc. art. 3811, § 6. "Clear and specific showing” appears in two others. See Tex. Civ. Prac. & Rem. Code § 22.024; Tex. Code Crim Proc. art. 3811, §§ 4(a), (c), 5(a).
. Before the TCPA’s enactment, the phrase appeared in two reported cases. See McDonald,
. Professor Dobbs offers a number of examples of commercial disparagement or trade libel that are not strictly speaking defamatory in the sense of dignitary harm:
[A] publication that says the defendant’s product is poisonous and contaminates the land or [ ] one that says the plaintiff's wood products are inferior and will not stand up.... A false statement that the ratings of the plaintiff’s radio show are too low to justify continuing the show.... [A] publication falsely stating the price the plaintiff
*592 charges for his goods [or] that the plaintiff is no longer carrying on a business or has insufficient funds to continue in business.
3 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 656, at 618-19 (2d ed.2011) (footnotes omitted).
. Special damages are synonymous with economic damages and, are distinguishable from general damages. General damages are recoverable under a defamation claim for non-economic losses, such as loss of reputation and mental anguish. Hancock v. Variyam,
. The court of appeals quoted from the vice president’s affidavit as indicated below:
As a direct and proximate result and consequence of the ... false, disparaging, and defamatory public statements made by Steven Lipsky ... regarding Range and its operations, Range's business and reputation have been harmed.... The numerous false, disparaging, and defamatory public statements made by Mr. Lipsky ... have caused Range to be associated in the public as a polluter of water and the environment, and nothing could be further from the truth.
.. .As a direct and proximate result and consequence of the false, disparaging, and defamatory statements made by Mr. Lipsky ..., Range has suffered direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates. To date, the damages suffered by Range as a direct and proximate result and consequence of the conspiracy and ... defamatory public statements made by Lipsky and Rich are in excess of three million dollars.
. The common law distinction between defamation per se and per quod has been criticized as anachronistic and has been abandoned in some jurisdictions, but Texas has not abandoned this distinction. See Waste Mgmt. of Tex.,