A non-movant must establish a prima facie case for each essential element of a breach of contract claim by clear and specific evidence to overcome a motion to dismiss. (basis: judge-written descriptions)
An employer sued a former program director for breaching nondisclosure agreements by disclosing confidential information to third parties. The defendant moved to dismiss the suit under the Texas Citizens Participation Act, arguing her actions were protected speech. To avoid dismissal, the employer must establish a prima facie case for each essential element of its claim by clear and specific evidence. Although the employer did not provide an exact calculation of lost profits, it presented affidavits and evidence showing the defendant's disclosures caused a consortium partner to terminate an agreement, thereby preventing the employer from conducting profitable courses. Because this evidence allowed for a rational inference that damages naturally flowed from the defendant's conduct, the employer established a prima facie case.
At page 847 Establishing prima facie case under TCPA requirements143 citing cases“direct evidence of damages is not required, but the evidence must be sufficient to allow a rational inference that some damages naturally flowed from the defendant's conduct.”
- Jack Hart v. Manriquez Holdings, LLC, 661 S.W.3d 432 (Tex. App.—Houston [14th Dist.] 2023).published (clear” means “‘unambiguous,’ ‘sure,’ or ‘free from doubt,’” and “specific” means “‘explicit’ or ‘relating to a particular named thing’)
- Grable Grimshaw Mora, PLLC v. Christopher J. Weber, LLC, No. 04-21-00064-CV (Tex. App.—San Antonio July 21, 2021).published(Appellate review of issues regarding interpretation of the TCPA is de novo.)
- Cristancho, No. 3:24-cv-00110 (S.D. Tex. Aug. 4, 2026).BREACH OF CONTRACT To prevail on a breach of contract claim under Texas law, Plaintiffs must establish four elements: “(1) formation of a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) the plaintiff…
- Rachel Wang v. Test Masters Educ. Servs., Inc., No. 01-25-00048-CV (June 23, 2026).published Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017)); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 727 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). 6 “Prima facie case” refers to “evidence that is legally sufficient to esta…
- Obaro, No. 4:23-cv-01249 (S.D. Tex. June 18, 2026).To prevail on his breach of contract claim, Obaro must establish four elements: “(1) formation of a valid contract; (2) performance by [Obaro]; (3) breach by the [Association]; and (4) [Obaro] sustained damages as a result of the breach.”…
- Greg Smith v. Lina Ramey, No. 02-25-00685-CV (June 11, 2026).publishedCode § 27.006(a); S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Michael Kelley v. Carl Satterlee, No. 07-25-00017-CV (Tex. App.—Amarillo Nov. 20, 2025).publishedS&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Obaro, No. 4:23-cv-01249 (S.D. Tex. Oct. 27, 2025).To survive summary judgment on his breach of contract claim, Obaro must create a genuine issue of material fact as to the following four elements: “(1) formation of a valid contract; (2) performance by [Obaro]; (3) breach by the [Associati…
- Texas Monthly, LLC v. Michelle Haas, No. 13-25-00005-CV (Tex. App.—Corpus Christi–Edinburg Oct. 16, 2025).publishedA “prima facie case” means “evidence that is legally sufficient to establish a claim as factually true if it is not countered.” S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Evans v. Marshall, No. 23-04072 (Bankr. E.D. Tex. Aug. 19, 2025).“four elements: (1) formation of a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) ‘the plaintiff sustained damages as a result of the breach’).”
Show 128 more citing cases
- Divonne Soler v. David Tisminezky Sukerman, No. 03-24-00783-CV (Tex. App.—Austin June 10, 2025).publishedS&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Zillow, Inc. v. BMB Dev., LLC, No. 02-24-00553-CV (Tex. App.—Fort Worth May 15, 2025).publishedCode Ann. § 27.006 (a); S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); NexPoint Advisors, 674 S.W.3d at 445.
- Horizontal Dev. Partners, LLC v. Endeavor Energy Resources, LP, 715 S.W.3d 439 (Tex. App.—Eastland 2025).publishedUnder the Act, “prima facie” is the “minimum quantum of evidence [that is] necessary to support a rational inference that the allegation of fact is true.” USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195 , 200 (Tex. 2023) (quoting S&S…
- Shyloa Seaman & M.O.R.E. Heart & Soul Counseling & Consulting, P.L.L.C. v. Jenna Gautreaux, No. 09-23-00291-CV (Tex. App.—Beaumont Oct. 10, 2024).published The Department responded that the investigation was conducted by “licensing and it is not considered CPS[,]” and they could not access the investigation which was marked “sensitive.” Still, the Department emails indicated “that they found…
- Susan Clouthier & Clouthier Law, PLLC v. Vernard Brown, Jr., No. 03-23-00777-CV (Tex. App.—Austin Aug. 30, 2024).publishedS&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Chris Samples v. Est. of Thomas Brown, Through Its Authorized Rep., Penny Meek, Penny Meek Individually, Chris Meek, & Tucker Brown, No. 07-23-00225-CV (Tex. App.—Amarillo June 28, 2024).publishedId. (citing S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018)).
- Gulf Coast Pros, LLC v. Monica Sweeney, No. 09-23-00320-CV, 2024 WL 3057494 (Tex. App.—Beaumont June 20, 2024).published Prima facie means “at first sight,” and under the TCPA, a prima facie case is the “minimum quantum of evidence necessary to 4 support a rational inference that the allegation of fact is true.” USA Lending Grp., Inc. v. Winstead PC, 669 S.W…
- Dr. Mary Talley Bowden v. Methodist Hosp., No. 14-23-00130-CV (Tex. App.—Houston [14th Dist.] May 30, 2024).publishedThe supreme court, however, has held that, for purposes of the TCPA, “clear” means “‘unambiguous,’ ‘sure,’ or ‘free from doubt,’” and “specific” means “‘explicit’ or ‘relating to a particular named thing.’” S & S Emergency Training Sols.,…
- Axion Sales Force v. Ryan Moore, No. 12-23-00255-CV (Tex. App.—Tyler May 22, 2024).publishedS & S Emergency Training Sols, 8 Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Kinetic Content, LLC v. Tran Dang, 695 S.W.3d 769 (Tex. App.—Houston [1st Dist.] 2024).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). 7 D.
- USA Today v. Ryan, LLC, No. 09-22-00432-CV (Tex. App.—Beaumont May 2, 2024).publishedPrima facie means “at first sight,” and under the TCPA, a prima facie case is the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3…
- Mauro E. Garza & Everett Holdings, LLC v. Julia Perez, No. 07-23-00271-CV (Tex. App.—Amarillo Apr. 23, 2024).published S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Gupta v. Martin, No. 1:23-cv-01191 (W.D. Tex. Mar. 28, 2024).S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- William Garland Simons v. Med. Hyperbarics, Inc., No. 05-23-00053-CV (Tex. App.—Dallas Mar. 15, 2024).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Consultants in Pain Med., PLLC v. Ellen Boyle Duncan, PLLC, 690 S.W.3d 739 (Tex. App.—San Antonio 2024).published“minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true”
- Evan McShirley v. Leilani Lucas, No. 02-23-00229-CV (Tex. App.—Fort Worth Mar. 7, 2024).publishedCode Ann. § 27.006 (a); S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); see Maggret v. Ramsey’s Rods & Restoration, No. 02-20- 00395-CV, 2021 WL 2253244 , at *2 (Tex. App.—Fort Worth June 3, 2021, no pet.) (…
- KRJJ Enter. v. Johanna C. Willis, No. 01-23-00198-CV (Tex. App.—Houston [1st Dist.] Dec. 14, 2023).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Daigle v. Amerihome Mortg. Co., No. 3:22-cv-00133, 2023 WL 8373179 (S.D. Tex. Dec. 4, 2023).ANALYSIS A. BREACH OF CONTRACT To prevail on a breach of contract claim under Texas law, Mrs. Daigle must establish four elements: “(1) formation of a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) t…
- DaSean A. Jones v. Tami C. Pierce, No. 01-23-00187-CV, 2023 WL 7778583 (Tex. App.—Houston [1st Dist.] Nov. 16, 2023).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Lewis v. Citadel Servicing Corp., No. 4:21-cv-01294 (S.D. Tex. Nov. 16, 2023).To prevail on a breach of contract claim under Texas law, Lewis must establish four elements: “(1) formation of a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) the plaintiff sustained damages as a r…
- James Clifford Walker v. Frederick Lunenberg, 679 S.W.3d 883 (Tex. App.—Houston [1st Dist.] 2023).published USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195 , 200 7 (Tex. 2023); S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Wayne Dolcefino & Dolcefino Commc'ns, LLC v. Azhar M. Chaudhary Azhar M. Chaudhary Law Firm, PC, No. 14-22-00724-CV (Tex. App.—Houston [14th Dist.] Oct. 31, 2023).published“minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true”
- Eureka Holdings Acquisitions, L.P. v. Marshall Apts., LLC, No. 03-21-00442-CV (Tex. App.—Austin Sept. 29, 2023).published (instructing that direct evidence of damages is not required)
- Huffman v. U.S. Bank Nat'l Ass'n, No. 2:21-cv-02163 (D. Kan. Sept. 29, 2023). S&S Emergency Training Solutions, Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Newstream Roanoke 6.125, LLC v. Jonell Shore, No. 02-22-00506-CV, 2023 WL 5615871 (Tex. App.—Fort Worth Aug. 31, 2023).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Courtney Chesson v. Wilbur Hah, No. 09-22-00416-CV (Tex. App.—Beaumont Aug. 10, 2023).published(noting second step of analysis after TCPA applicability is whether non- movant established by clear and specific evidence a prima facie case of each essential element of its breach-of-contract claim)
- April Gage v. Wilbur Hah, No. 09-22-00417-CV (Tex. App.—Beaumont Aug. 10, 2023).published(noting second step of analysis after TCPA applicability is whether non- movant established by clear and specific evidence a prima facie case of each essential element of its breach-of-contract claim)
- Ashley Melton v. Wilbur Hah, No. 09-22-00418-CV (Tex. App.—Beaumont Aug. 10, 2023).published(noting second step of analysis after TCPA applicability is whether non- movant established by clear and specific evidence a prima facie case of each essential element of its breach-of-contract claim)
- Lauren Martynuik Robinson v. Wilbur Hah, No. 09-22-00414-CV, 2023 Tex. App. LEXIS 6043 (Tex. App.—Beaumont Aug. 10, 2023).published(noting second step of analysis after TCPA applicability is whether non-movant established by clear and specific evidence a prima facie case of each essential element of its breach-of-contract claim)
- Jose Antonio Venero v. Jose Antonio Lozada, No. 07-23-00022-CV (Tex. App.—Amarillo July 27, 2023).publishedS&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Daniel Conrad v. Carl Joiner, No. 01-22-00450-CV (Tex. App.—Houston [1st Dist.] July 6, 2023).publishedSee id. § 27.005(b); S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Child.'s Lighthouse, Spring v. Amy Davison, No. 13-22-00452-CV (Tex. App.—Corpus Christi–Edinburg July 6, 2023).publishedA “prima facie case,” as used in the TCPA, means “evidence that is legally sufficient to establish a claim as factually true if it is not countered.” S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Ernst & Young LLP & S.K. Thakkar v. Ryan, LLC, No. 01-21-00603-CV, 2023 WL 4239350 (Tex. App.—Houston [1st Dist.] June 29, 2023).publishedS & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Guardianship of Sheila McConnell Workman, an Incapacitated Person v. the State of Texas, 670 S.W.3d 414 (Tex. App.—Eastland 2023).publishedUnder the Act, “prima facie” is the “minimum quantum of evidence [that is] necessary to support a rational inference that the allegation of fact is true.” USA Lending Grp., Inc. v. Winstead PC, No. 21- 0437, 2023 WL 3556701 , at *2 (Tex. M…
- Ben Sayani v. Smothermon Fam. Partners, No. 05-22-00177-CV (Tex. App.—Dallas June 14, 2023).publishedS&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).
- Todd Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019).published
- Comm'n for Lawyer Discipline v. Omar Weaver Rosales, 201701087, 201700840, 201700279, 201700153, 201607308, 201607292, 201701948, 201702052, 577 S.W.3d 305 (Tex. App.—Austin 2019).published
- Barbara Baxter v. Ron Collins, No. 07-17-00269-CV (Tex. App.—Amarillo Apr. 11, 2019).published
- Karen Misko v. Tracy Johns, 575 S.W.3d 872 (Tex. App.—Dallas 2019).published
- Staff Care, Inc. v. Eskridge Enter., LLC, No. 05-18-00732-CV, 2019 WL 2121116 (Tex. App.—Dallas May 15, 2019).published
- Jeffrey Erdner v. Highland Park Emergency Ctr., LLC, 580 S.W.3d 269 (Tex. App.—Dallas 2019).published
- Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706 (2019).published
- Jonathan Perlman & Tradition Senior Living, L.P. v. EKLS Firestopping & Constr., LLC, No. 05-18-00971-CV, 2019 WL 2710752 (Tex. App.—Dallas June 28, 2019).published
- Amy Robilio Reed v. Centurion Terminals, LLC, No. 05-18-01171-CV, 2019 WL 2865281 (Tex. App.—Dallas July 3, 2019).published
- James Damonte v. Hallmark Fin. Servs., Inc., No. 05-18-00874-CV (Tex. App.—Dallas July 12, 2019).published
- Pearl Energy Inv. Mgmt., LLC v. Gravitas Resources Corp., No. 05-18-01012-CV (Tex. App.—Dallas Aug. 7, 2019).published
- David Gordan Schmidt (d/B/A ABC Bonding Co.) & Greenbrier Equities, LLC v. Brenda Crawford, 584 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2019).published
- ETC Texas Pipeline, Ltd. Oasis Pipe Line Co. WesTex Energy v. Addison Expl. & Dev., LLC, 582 S.W.3d 823 (Tex. App.—Eastland 2019).published
- Neurodiagnostic Consultants, LLC v. Melody Nallia, No. 03-18-00609-CV (Tex. App.—Austin Sept. 6, 2019).published
- Richard Rogers & RRK Real Est. Investments & Holdings, LLC v. Soleil Chartered Bank, No. 02-19-00124-CV, 2019 WL 4686303 (Tex. App.—Fort Worth Sept. 26, 2019).published
- Margarita Maldonado v. Trenton Franklin, No. 04-18-00819-CV (Tex. App.—San Antonio Sept. 30, 2019).published
- Neurodiagnostic Consultants, LLC v. Corey Villalobos, No. 03-18-00743-CV (Tex. App.—Austin Oct. 4, 2019).published
- Tommy Rossa v. Steven Seth Mahaffey, 594 S.W.3d 618 (Tex. App.—Eastland 2019).published
- Kinder Morgan SACROC, LP v. Scurry Cnty. Snyder Indep. Sch. Dist. Scurry Cnty. Junior Coll. Dist., No. 11-19-00097-CV (Tex. App.—Eastland Nov. 7, 2019).published
- Garrison Inv. Grp. LP v. Lloyd Jones Capital, LLC, No. 02-19-00115-CV, 2019 WL 5996979 (Tex. App.—Fort Worth Nov. 14, 2019).published
- Integ Corp. v. Hidalgo Cnty. Drainage Dist. No. 1, No. 13-18-00123-CV (Tex. App.—Corpus Christi–Edinburg Nov. 21, 2019).published
- Neal Rouzier v. BioTE Med., LLC, No. 05-19-00277-CV, 2019 WL 6242305 (Tex. App.—Dallas Nov. 22, 2019).published
- Ryan Eugene Ray v. Veronica Fikes, No. 02-19-00232-CV (Tex. App.—Fort Worth Dec. 5, 2019).published
- Oscar Leo Quintanilla v. Andrew Bradford West, No. 04-16-00533-CV (Tex. App.—San Antonio Jan. 15, 2020).published
- Misty Hawkins v. Fox Corp. Hous., 606 S.W.3d 41 (Tex. App.—Houston [1st Dist.] 2020).published
- Charles Wayne Russell v. Lori Elizabeth Russell, No. 01-19-00516-CV (Tex. App.—Houston [1st Dist.] Feb. 25, 2020).published
- Borderline Mgmt., LLC v. Suzann Ruff, No. 11-19-00152-CV, 2020 WL 1061485 (Tex. App.—Eastland Mar. 5, 2020).published
- Lease Acceptance Corp. v. Luis Ricardo Hernandez, No. 13-18-00598-CV (Tex. App.—Corpus Christi–Edinburg Mar. 12, 2020).published
- Sec. Serv. Fed. Credit Union v. Michelle Rodriguez, 611 S.W.3d 48 (Tex. App.—El Paso 2020).published
- Nimesh v. Patel & Chandrakant Patel v. Narendra M. Patel, No. 14-18-00771-CV (Tex. App.—Houston [14th Dist.] May 5, 2020).published
- Stephanie Clifford v. Donald Trump, 818 F. App'x 746 (9th Cir. 2020).unpublished
- Larry Chambers v. Juan Carlos Garay, 632 S.W.3d 51 (Tex. App.—El Paso 2020).published
- Texas Windstorm Ins. Ass'n v. David James, No. 13-17-00401-CV (Tex. App.—Corpus Christi–Edinburg Aug. 20, 2020).published
- Edward Roels v. Lee Valkenaar, No. 03-19-00502-CV, 2020 WL 4930041 (Tex. App.—Austin Aug. 20, 2020).published
- Keel Recovery, Inc. v. Tri Cnty. Adjusters, Inc., No. 05-19-00686-CV, 2020 WL 5269603 (Tex. App.—Dallas Sept. 4, 2020).published
- Nori Alvarez Baker v. Orange Panda, LLC, No. 04-19-00846-CV (Tex. App.—San Antonio Oct. 28, 2020).published
- Andrew White v. NHI-REIT of Axel, LLC, No. 05-19-00651-CV (Tex. App.—Dallas Oct. 29, 2020).published
- Compass Bank v. Everett Wayne Collier, No. 09-19-00112-CV, 2020 WL 6494213 (Tex. App.—Beaumont Nov. 5, 2020).published
- Margaret Darling Hamilton v. William L. Marnard, No. 01-19-00925-CV (Tex. App.—Houston [1st Dist.] Nov. 19, 2020).published
- Luxottica of Am. Inc. v. Jeffrey Gray, Dawn Gray & Brave Optical, Inc., No. 05-19-01013-CV (Tex. App.—Dallas Dec. 1, 2020).published
- Judwin Props. Inc. v. Garry Lewis, 615 S.W.3d 338 (Tex. App.—Houston [14th Dist.] 2020).published
- Jules S. Brenner Clark Hill PLC Also Doing Bus. as Clark Hill Strasburger & Strasburger & Price, LLP v. Centurion Logistics LLC Directly &, No. 05-20-00308-CV, 2020 WL 7332847 (Tex. App.—Dallas Dec. 14, 2020).published
- Don Harris v. Terry Knutson, No. 05-19-00462-CV (Tex. App.—Dallas Dec. 9, 2020).published
- Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d 630 (Tex. App.—Houston [14th Dist.] 2020).published
- CDM Constructors, Inc. v. City of Weslaco, No. 13-19-00447-CV, 2021 WL 1133615 (Tex. App.—Corpus Christi–Edinburg Mar. 25, 2021).published
- QBE Americas, Inc. v. Deylan Walker, No. 05-20-00439-CV, 2021 WL 1976459 (Tex. App.—Dallas May 12, 2021).published
- Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40 (Tex. 2021).published
- Anthony Montano v. Kyle Cronan, No. 09-20-00232-CV, 2021 WL 2963801 (Tex. App.—Beaumont Aug. 26, 2021).published
- Carolyn Sasano, PhD. v. Kirsi Niemela-Waller, PhD., No. 02-20-00378-CV (Tex. App.—Fort Worth Aug. 19, 2021).published
- Winstead PC v. Dewey M. Moore, Jr., 633 S.W.3d 200 (Tex. App.—Dallas 2021).published
- Baylor Scott & White v. Proj. Rose MSO, LLC, 633 S.W.3d 263 (Tex. App.—Tyler 2021).published
- Sun Cho Yu v. Sun Joo Koo, 633 S.W.3d 712 (Tex. App.—El Paso 2021).published
- Candice Jackson v. Kell Auto Sales, Inc., No. 02-21-00106-CV (Tex. App.—Fort Worth Nov. 18, 2021).published
- Undine Texas LLC v. Kara Ware Russell Ware Earl Willis Emily Willis, No. 14-19-00777-CV (Tex. App.—Houston [14th Dist.] Nov. 30, 2021).published
- Beach Street Foods, Inc. v. Grandy's, LLC, No. 02-20-00135-CV (Tex. App.—Fort Worth Jan. 20, 2022).published
- Dora Guzman v. Louis Sorola, No. 13-21-00168-CV (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2022).published
- Union Pac. R.R. Co. v. Betty Chenier, 649 S.W.3d 440 (Tex. App.—Houston [1st Dist.] 2022).published
- Amyn Gilani v. Thomas Wayne Rigney & Rigney Fin. Servs., LLC, No. 02-21-00314-CV (Tex. App.—Fort Worth Mar. 10, 2022).published
- D. Alan Meeker v. Luminex Corp., No. 03-20-00568-CV (Tex. App.—Austin Mar. 17, 2022).published
- Heavenly Homes of South Texas, LLC v. Infinity Custom Constr., LLC, No. 13-21-00298-CV (Tex. App.—Corpus Christi–Edinburg June 9, 2022).published
- John Doe v. Melissa Smith, No. 13-21-00304-CV (Tex. App.—Corpus Christi–Edinburg June 30, 2022).published
- Greater McAllen Ass'n of Realtors v. Timothy Wayne Wilkins, No. 13-21-00208-CV (Tex. App.—Corpus Christi–Edinburg Aug. 4, 2022).published
- Iron Tigga, LLC v. Law Offices of David W. Showalter, LLP, No. 13-21-00459-CV (Tex. App.—Corpus Christi–Edinburg Oct. 20, 2022).published
- Whataburger Restaurants LLC v. Sadok Ferchichi, 698 S.W.3d 297 (Tex. App.—San Antonio 2022).published
- Willow Creek Golf Club, Inc. v. Willow Creek Mgmt., Inc., No. 14-21-00727-CV, 2023 WL 166836 (Tex. App.—Houston [14th Dist.] Jan. 12, 2023).published
- Jordan Rogers v. Benjamin David Bryan, No. 09-21-00338-CV, 2023 Tex. App. LEXIS 505 (Tex. App.—Beaumont Jan. 26, 2023).published
- AdvanTech Constr. Sys., LLC v. Michalson Builders, Inc., No. 14-21-00159-CV, 2023 WL 370513 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023).published
- Ireland Fam. Ltd. P'ship v. Brent Soloway, No. 09-22-00192-CV (Tex. App.—Beaumont Mar. 16, 2023).published
- Christie Lynn Terrell v. Rashin Mazaheri, 676 S.W.3d 116 (Tex. App.—San Antonio 2023).published
- Avid Square Constr., LLC v. Valcon Consulting, LLC, No. 02-22-00297-CV, 2023 WL 3113950 (Tex. App.—Fort Worth Apr. 27, 2023).published
- USA Lending Grp., Inc. v. Winstead Pc, 669 S.W.3d 195 (Tex. 2023).published
- Winstead PC & James Ruiz v. USA Lending Grp., Inc., No. 12-20-00172-CV (Tex. App. June 12, 2023).published
- Texas A&M Univ. 12th Man Found. v. Robert C. Hines, No. 09-23-00175-CV (Tex. App.—Beaumont June 13, 2024).published
- MVT Servs., LLC v. Great West Cas. Co., No. 2:18-cv-01128 (D.N.M. Oct. 17, 2022).
- Nat. Polymer Internation Corp. v. Hartz Mountain Corp., 426 F. Supp. 3d 300 (E.D. Tex. 2019).published
- Kelli DeWispelare v. Jamie DeWispelare, No. 05-24-00176-CV (Tex. App.—Dallas Sept. 23, 2024).published
- Lin v. Veritex Cmty. Bank, N.A., No. 4:20-cv-01904 (S.D. Tex. Feb. 21, 2022).
- Davis v. CenturyLink, Inc, No. 3:22-cv-00038 (S.D. Tex. Feb. 21, 2023).
- Felix Robert Suarez v. U.S. Bank, NA, No. 5:19-cv-00704 (W.D. Tex. July 31, 2019).
- Tatiana Telegina v. Valadimir Nechayuk, No. 09-22-00383-CV, 2024 WL 5080262 (Tex. App.—Beaumont Dec. 12, 2024).published
- Bank of New York Mellon v. David Hall, No. 09-23-00102-CV (Tex. App.—Beaumont May 22, 2025).published
- Frolamo, LLC v. Arturo Ortega, No. 13-23-00210-CV, 2025 WL 1387070 (Tex. App.—Corpus Christi–Edinburg May 13, 2025).published
- Willard Cox Jr. v. Kathleen Kimberlin, No. 09-24-00120-CV (Tex. App.—Beaumont July 10, 2025).published
- United Operations, LLC v. Edge Fin., LLC, No. 09-24-00281-CV (Tex. App.—Beaumont Aug. 28, 2025).published
- Jeff Akhtar v. East Texas Truss, LLC, No. 09-23-00287-CV (Tex. App.—Beaumont Oct. 2, 2025).published
- Cesar De Leon v. State Farm Lloyds, No. 09-24-00212-CV (July 2, 2026).published
- Shopoff Advisors, LP v. First Am. Title Co., No. 04-18-00438-CV (Tex. App.—San Antonio July 10, 2019).published
- Brown Sims, P.C. v. L.W. Matteson, Inc., 594 S.W.3d 573 (Tex. App.—San Antonio 2019).published
- Shopoff Advisors, LP v. First Am. Title Co., 596 S.W.3d 894 (Tex. App.—San Antonio 2019).published
- HDG, Ltd v. Kelly Blaschke, No. 14-18-01017-CV, 2020 WL 1809140 (Tex. App.—Houston [14th Dist.] Apr. 9, 2020).published
- Mattress Firm, Inc. v. Bruce Levy & Terra Consulting II, LLC, 612 S.W.3d 467 (Tex. App.—Houston [1st Dist.] 2020).published
- Adrienne C. Bibby v. Ronald Bibby, 634 S.W.3d 401 (Tex. App.—Houston [1st Dist.] 2021).published
- Makeda Sylvester v. Perri Michael, No. 05-24-00360-CV (Tex. App.—Dallas Nov. 14, 2024).published
At page 848 Determining required evidence for lost profits9 citing casesconcluding that the nonmovant only was required to produce evidence that the movant’s actions “caused it to lose some specific, demonstrable profits
- Zdenka Wilcox v. Juan Diego Duran, No. 02-25-00643-CV (Aug. 13, 2026).publishedAlthough the nonmovant need not “provide evidence sufficient to allow an exact calculation” of damages to meet its step-two burden, S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 848 (Tex. 2018), “[b]are, baseless opinion…
- Nicole Welch & Restore Hyper Wellness & Cryotherapy v. Kymberly See, No. 03-22-00037-CV (Tex. App.—Austin Sept. 29, 2023).published The challenged statements do not fairly imply a habitual course of similar conduct by See or that she lacks qualities or skill that the public is reasonably entitled to expect of a nurse. 18 defendant’s conduct.’” USA Lending Grp., Inc. v.…
- Stallion Oilfield Servs. Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205 (Tex. App.—Eastland 2019).published
- Michael Reilly & Ravago Americas LLC v. Premier Polymers, L.L.C, No. 14-19-00336-CV, 2020 WL 7074253 (Tex. App.—Houston [14th Dist.] Dec. 3, 2020).published
- Perry v. Pennymac Loan Servs., LLC, No. 4:18-cv-00753 (N.D. Tex. Aug. 28, 2019).
- Daniels v. Regions Bank, No. 4:19-cv-00416 (N.D. Tex. Sept. 27, 2019).
- Bell v. Everett Fin. Inc, No. 3:20-cv-00370 (N.D. Tex. Mar. 30, 2021).
- Zurich Am. Ins. Co. v. TxEx Energy Investments LLC, No. 4:20-cv-03622 (S.D. Tex. Aug. 5, 2022).
- Ameedah E. Johnson v. Rocket Mortg., LLC, No. 3:26-cv-02636 (N.D. Tex. Aug. 14, 2026).
At page 846 Determining constitutional right as first step in tcpa analysis3 citing casesThe first step requires determining whether the defendant established that the plaintiff’s suit was in response to the defendant’s having exercised her constitutional right to free speech, petition, or association.
- Jose Antonio Venero Lugo v. Gerardo Felipe Cordova Sanchez, No. 03-21-00058-CV, 2021 WL 5312323 (Tex. App.—Austin Nov. 12, 2021).published(The first step requires determining whether the defendant established that the plaintiff’s suit was in response to the defendant’s having exercised her constitutional right to free speech, petition, or association.)
- Gregory Sullo v. Felix Michael Kubosh, No. 01-18-00418-CV (Tex. App.—Houston [1st Dist.] Nov. 19, 2019).published
- Gregory Sullo v. Felix Michael Kubosh, 616 S.W.3d 869 (Tex. App.—Houston [1st Dist.] 2020).published
v.
Sheila ELLIOTT, Respondent
[*845] S & S Emergency Training Solutions, Inc. d/b/a Emergency Medical Training Services (EMTS) sued a former employee for breaching nondisclosure agreements she signed in connection with her employment. The employee, Sheila Elliott, responded in part with a motion to dismiss under the Texas Citizens Participation Act (TCPA). TEX. CIV. PRAC. & REM. CODE § 27.003. The question is whether, in response to Elliott's motion to dismiss, EMTS provided clear and specific evidence of a prima facie case that she breached the agreements. The trial court answered "yes;" the court of appeals answered "no." Because we agree with the trial court that the answer is "yes," we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.
I. Background
EMTS provides courses and training for emergency medical service providers. One of its courses qualified students to take the National Registry of Emergency Medical Technicians Exam, which is the test required to become a licensed paramedic. A paramedic education program such as that offered by EMTS must be nationally accredited for its graduates to be eligible to take the exam. A program may receive accreditation from an institution accrediting agency recognized by the U.S. Department of Education or through a consortium agreement with an entity that has already been accredited. 25 TEX. ADMIN. CODE § 157.32(f) (2017) (Tex. Dep't of State Health Servs., Emergency Medical Services Education Program and Course Approval); Comm'n on Accreditation of Allied Health Educ. Programs (CAAHEP), Standards & Guidelines for the Accreditation of Educational Programs in the Emergency Medical Services Professions 2-3 (2015), https://www.caahep.org/CAAHEP/media/CAAHEP-Documents/EMSPStandards2015.pdf. To fulfill the accreditation requirement, EMTS entered into a consortium agreement with Arlington Career Institute (ACI), an accredited institution.
In April 2013, EMTS contracted with Elliot for her to be its program director. As program director, Elliott would have access to information EMTS considered to be confidential. Thus, EMTS required her to sign nondisclosure agreements (NDAs). In 2014, Elliott signed an NDA to which both EMTS and ACI were parties. The NDA provided that Elliott would not use or disclose processes, information, records, or specifications of the consortium except in the course of her employment and for the benefit of the consortium. In 2015, Elliott signed another, similar, NDA to which EMTS and ACI were parties. In December 2015, Elliott wrote a letter to EMTS's CEO, Thomas Cellio III, requesting a raise. She claimed that as program director she had kept EMTS "running smooth and profitable." The day after she sent the letter she resigned.
After she resigned, Elliott filed complaints with the Texas Department of State Health Services in which she alleged that EMTS engaged in unlawful business practices. She sent copies of her complaints to ACI's CEO, Jon Vecchio, and notified potential employers of EMTS's graduates, such as police and fire departments, of her pending allegations. Elliott also communicated these allegations to some current and former EMTS students, and publicized this information on the internet. Following Elliott's actions, ACI withdrew from the consortium agreement with EMTS.
EMTS sued Elliott for breach of contract and moved for injunctive relief. It claimed she violated the NDAs by disclosing[*846] confidential information covered by the agreements. The trial court granted EMTS's motion and enjoined Elliott from disclosing EMTS's confidential information. Elliott responded with a motion to dismiss pursuant to the TCPA in which she contended that her actions were an exercise of her right to petition and her right of free speech. She maintained that the matters about which she communicated related to the training of emergency medical personnel, which is a matter of public concern. EMTS countered that Elliott contractually agreed to forgo her rights of free speech and petition as to confidential information covered by the NDAs. In the alternative, EMTS argued that it provided clear and specific evidence of a prima facie case of breach of contract, thus it was entitled to maintain its suit. The trial court denied Elliott's motion to dismiss without explanation. Elliott filed an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).
The court of appeals reversed and remanded with instructions to the trial court to dismiss the suit and award attorney's fees to Elliott. 559 S.W.3d 568 , ---- (Tex. App.-Dallas 2017). The court noted that if the TCPA is invoked, reviewing a suit such as EMTS's entails a two-step analysis. Id. at ----. The first step requires determining whether the defendant established that the plaintiff's suit was in response to the defendant's having exercised her constitutional right to free speech, petition, or association. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). If the defendant establishes that she did, then the second step requires the plaintiff to establish a prima facie case of each essential element of its claim by clear and specific evidence. See id. § 27.005(c). The court of appeals concluded that Elliott was exercising her right to free speech because her communications touched on matters of public concern. 559 S.W.3d at ----. It rejected EMTS's argument that Elliott could not satisfy the first step of the TCPA process because she had given up the rights on which that process would be based when she entered into the NDAs. Id. It did so on the basis that the NDAs were relevant to the second step of the process, but not to the first step. Id. (citing In re Lipsky , 460 S.W.3d 579 , 586 (Tex. 2015) ). The appeals court then turned its analysis to the second step of the TCPA inquiry: did EMTS meet its burden of establishing, by clear and specific evidence, a prima facie case for its breach of contract claim? Id. at ----. The court of appeals determined that EMTS established all the elements of a breach of contract claim except that EMTS did not show the disclosures caused it to suffer damages. Id. at ----.
In this Court, EMTS contends that the court of appeals applied an erroneous standard regarding the damages element of its claim-the court measured the evidence by whether EMTS produced evidence of the specific amount of damages the disclosures caused instead of properly determining whether EMTS produced prima facie evidence that the disclosures simply caused it some damages. EMTS argues that it met the proper standard by providing evidence that ACI terminated the consortium agreement in response to Elliott's disclosures, which in turn caused EMTS to be unable to conduct its profitable paramedic courses. Alternatively, EMTS asserts that it established a prima facie case for specific performance and injunctive relief by clear and specific evidence. EMTS references evidence that it claims shows Elliott's disclosures caused ACI to terminate the consortium agreement it had with EMTS, and thus demonstrated imminent harm, irreparable injury, and lack of an adequate legal remedy.
Elliott argues that the court of appeals applied the correct standard, which requires[*847] more than the generalized, conclusory testimony of EMTS's CEO on which EMTS relies. Elliott also argues that EMTS's evidence failed to show that the courses it could no longer offer yielded a net profit. As to EMTS's argument regarding nonmonetary relief, Elliott maintains that EMTS failed to preserve error, and even if it preserved error, it did not present a prima facie case of the essential elements of those claims.
II. Law
When a party asserts that claims in a suit against it are "based on, relate[ ] to, or [are] in response to" its exercise of certain constitutional rights, then it may move for dismissal under the TCPA. TEX. CIV. PRAC. & REM. CODE § 27.003(a). If such a movant establishes by a preponderance of the evidence that the suit "is based on, relates to, or is in response to the party's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association," the case shall be dismissed unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005. In determining whether such motions to dismiss should be granted, courts are to consider the pleadings and supporting and opposing affidavits on which the claim or defense is based. Id. § 27.006(a).
The nonmovant's evidence of a prima facie case must be "clear and specific" in order to avoid dismissal, id. § 27.005(c), although the statute does not define "clear and specific." In Lipsky , we referenced "clear" as meaning " 'unambiguous,' 'sure,' or 'free from doubt,' " and "specific" as " 'explicit' or 'relating to a particular named thing.' " 460 S.W.3d at 590 . We also determined that "prima facie case" as used in the statute means evidence that is legally sufficient to establish a claim as factually true if it is not countered. Id. In other words, a prima facie case is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. Direct evidence of damages is not required, but the evidence must be sufficient to allow a rational inference that some damages naturally flowed from the defendant's conduct. See id. at 591 , 592 ; Sw. Battery Corp. v. Owen , 131 Tex. 423 , 115 S.W.2d 1097 , 1099 (1938) ("A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages.").
Appellate review of issues regarding interpretation of the TCPA is de novo. Youngkin v. Hines , 546 S.W.3d 675 , 680 (Tex. 2018).
III. Analysis
As noted above, neither party contests the court of appeals' determination that EMTS sued Elliott in response to her exercise of free speech. See TEX. CIV. PRAC. & REM. CODE § 27.003 ; 559 S.W.3d at ----. Thus, we focus on the second step of the analysis regarding the TCPA: whether EMTS established by clear and specific evidence a prima facie case of each essential element of its breach-of-contract claim. See USAA Tex. Lloyds Co. v. Menchaca , 545 S.W.3d 479 , 501 n.21 (Tex. 2018) (a breach of contract action requires proof of four elements: (1) formation of a valid contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) "the plaintiff sustained damages as a result of the breach"). The court of appeals concluded that EMTS's evidence was sufficient except for causation and damages. 559 S.W.3d at ----. The only challenge here is to the court of appeals' evidentiary ruling regarding causation and damages.
Elliott claims that EMTS did not establish that it was damaged by the disclosures[*848] causing it to lose profits. In considering that claim, we note that EMTS was not required to provide evidence sufficient to allow an exact calculation of the lost profits. See Owen , 115 S.W.2d at 1098 . Rather, it was only required to present evidence sufficient to support a rational inference that Elliott's actions caused it to lose some specific, demonstrable profits. See Lipsky , 460 S.W.3d at 592-93 .
EMTS attached affidavits of ACI's CEO Jon Vecchio and Cellio to its response to Elliott's TCPA Motion. In his affidavit, Vecchio stated that EMTS and ACI were required to enter into the Consortium Agreement for EMTS to be accredited and offer approved paramedic training courses. According to Vecchio's affidavit, ACI terminated the agreement "[i]n large part due to Elliott's disclosures of information protected by the NDAs." Cellio averred that the consortium agreement was necessary for EMTS to comply with regulatory guidelines and qualify to offer the paramedic training classes. He also stated in the affidavit that because of EMTS's loss of ACI as a consortium partner, EMTS could no longer offer paramedic training courses to new students.
In an affidavit filed in support of her motion to dismiss, Elliott acknowledged that under the consortium agreement, EMTS conducted approximately ten paramedic training classes of thirty students each and that each student paid tuition of $4,950. She also acknowledged that, "[w]ithout a consortium agreement, EMTS was not going to be able to offer future Paramedic courses." A letter Elliott wrote while she was the program director and in which she asked for a raise was attached as an exhibit to Cellio's affidavit, which was in turn attached to EMTS's Brief in Support of its Application for Ex Parte Temporary Restraining Order and Application for Temporary Injunction. In the letter, Elliott stated that when she worked there EMTS was "running smooth and [was] profitable."
Elliott's pre-resignation letter and the affidavits of Vecchio and Cellio support, at minimum, rational inferences that (1) EMTS's paramedic classes were profitable before Elliott's disclosures of confidential information; (2) the disclosures were a cause of ACI's terminating the consortium agreement; and (3) termination of the consortium agreement caused EMTS to lose the ability to conduct the profitable paramedic training classes. See id. at 590 . Thus, EMTS provided prima facie evidence that Elliott's disclosures caused EMTS to lose profits. That evidence was sufficient to preclude dismissal of EMTS's suit. See id. at 593 ; Turner v. PV Int'l Corp. , 765 S.W.2d 455 , 465 (Tex. App.-Dallas 1988), writ denied , 778 S.W.2d 865 (Tex. 1989) (per curiam).
The court of appeals analogized the evidence in this case to the "general averments" of pecuniary loss and lost profits that failed to establish prima facie damages in Lipsky . 559 S.W.3d at ---- ; see 460 S.W.3d at 593 . But EMTS's pleadings and the record here reflect more than was present in Lipsky . This record demonstrates that EMTS's lost revenues were susceptible to calculation with reasonable certainty based on data regarding what classes were provided under the consortium agreement and how much revenue EMTS was taking in per student. Moreover, Elliott managed the program and stated in her December 2015 letter that EMTS was "profitable," not that it simply had students. The trial court could have reasonably inferred that as program director she had personal knowledge of both revenues and expenses, and thus whether EMTS's operation was profitable. See TEX. CIV. PRAC. & REM. CODE § 27.006(a) (courts must consider "the pleadings and supporting[*849] and opposing affidavits" forming the basis for the claim).
The court of appeals also stated that EMTS "did not attempt to explain how any damages might have been the natural, probable, and foreseeable result of Elliott's disclosures." 559 S.W.3d at 579 . In Lipsky , we determined that the plaintiff's affidavit was too uncertain to meet the TCPA threshold for a prima facie case. See 460 S.W.3d at 593 . There the plaintiff averred that it had suffered economic harm, but did not set out specific facts showing how the defendant's conduct caused the harm. See id. Here, in contrast, EMTS provided Vecchio's affidavit in which he specifically related termination of the consortium agreement to Elliott's breach of the NDAs.
Elliott argues that EMTS cannot establish a prima facie case because a simple loss of revenue is not enough to show damages. This argument stems from Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc. , in which the court held that a business's showing of declining general revenue in the wake of a negative review from BBB is not sufficient evidence for the damages element of a tortious interference claim where the TCPA is involved. 441 S.W.3d 345 , 361 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). As noted above, however, the evidence in the record here went beyond demonstrating revenues. The content of Elliott's December 2015 letter evidenced the fact that EMTS's classes were profitable, given her position as program director.
Elliott further argues that EMTS could have, but did not, satisfy its burden by demonstrating a decline from its pre-breach revenues and course bookings to its post-breach revenues and course bookings in the same way the plaintiffs did in Moldovan v. Polito . No. 05-15-01052, 2016 WL 4131890 , *10-11 (Tex. App.-Dallas Aug. 2, 2016, no pet.) (mem. op.) (photographer showed approximately $180,000 in revenues and seventy-five bookings a year in months before defamatory statement and $38,000 in revenues and two bookings in the six months after the statement). However, Polito is consistent with our conclusion in this case. The record contains evidence of EMTS's revenues before Elliott's disclosures, the number of classes it offered, and the approximate number of students enrolled in each class. There is no dispute that after her disclosures caused ACI to withdraw from the consortium agreement, EMTS was unable to continue the paramedic training courses.
Lastly, Elliott claims that the court of appeals should not be faulted for failing to consider the evidence in Elliott's affidavit and pre-resignation letter because EMTS did not specifically point out this evidence to either the trial court or the court of appeals. But the referenced evidence was in pleadings and affidavits that were before the trial court, and which the TCPA required the trial court to consider in determining whether to dismiss Elliott's case. See TEX. CIV. PRAC. & REM. CODE § 27.006(a) ("In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based."). Further, the precise arguments regarding the causation and damages elements of EMTS's breach of contract cause of action did not arise until parsed out by the court of appeals. In her appellant's brief there, Elliott mentioned EMTS's failure to establish a prima facie case for breach of contract, but did not specifically argue that EMTS failed to demonstrate that Elliott's actions caused it to lose profits. After the court of appeals concluded that EMTS failed to establish profitability and thus failed to establish[*850] that Elliott caused it to suffer damages, EMTS filed a motion for rehearing and pointed to Elliott's pre-resignation letter originally filed as part of the Cellio affidavit in the trial court. When the matter complained of originates with the court of appeals' opinion and judgment, it can be raised in a motion for rehearing there or a petition for review in this Court. See TEX. R. APP. P. 53.2(f) ; G.T. Leach Builders, LLC v. Sapphire V.P., L.P. , 458 S.W.3d 502 , 517-18 (Tex. 2015). EMTS did both.
Because, in response to Elliott's TCPA motion to dismiss, EMTS established a prima facie case by clear and specific evidence of each essential element of a breach of contract cause of action, we need not address whether EMTS established a prima facie case of entitlement to injunctive relief or specific performance.
IV. Conclusion
The court of appeals erred by dismissing EMTS's suit. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.