factual basis claim in Texas

2025“Collectively, these elements require that a party ‘provide enough detail to show the factual basis for its claim,’ and thus effectively abrogate the utility of mere notice pleading as ‘evidence’ to that end.” Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.—Austin 2017, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590-91 ).

2024Instead, a plaintiff must provide enough detail to show the factual basis for its claim.” Id. at 590–91.

2023“Collectively, these elements require that a party ‘provide enough detail to show the factual basis for its claim,’ and thus effectively abrogate the utility of mere notice pleading as ‘evidence’ to that end.” Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.—Austin 2017, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590-91 ); see also Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (“Under the Act, more than mere notice pleading is required to establish a plaintiff’s prima facie case.”).

2023Clear and specific evidence means that the “plaintiff must provide enough detail to show the factual basis for its claim.” Id. (citation omitted).

2026To establish reasonable grounds when the issues raised are not determinable from the record, “the motion [must] be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.” Id. “[A]ffidavits that are conclusory in nature and unsupported by facts do not provide the requisite notice of the basis for the relief claimed; thus, no hearing is required.” Id. 12 Our review of a trial court’s failure to hold a hearing on a motion for new trial is for an abuse of discretion.

2026To establish reasonable grounds when the issues raised are not determinable from the record, “the motion [must] be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.” Id. “[A]ffidavits that are conclusory in nature and unsupported by facts do not provide the requisite notice of the basis for the relief claimed; thus, no hearing is required.” Id. 12 Our review of a trial court’s failure to hold a hearing on a motion for new trial is for an abuse of discretion.

2025Thus, the movant “‘must provide enough detail to show the factual basis for its claim’ and must provide enough evidence ‘to support a rational inference that the allegation of fact is true.’” Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) 2 At oral argument, counsel for Horizontal also argued that the TCPA does not apply because the drilling permits qualify as commercial speech for purposes of the TCPA’s commercial speech exemption.

2023The TCPA’s requirement of “clear and specific evidence” means that the nonmovant “‘must provide enough detail to show the factual basis for its claim’ and must provide enough evidence ‘to support a rational inference that the allegation of fact is true.’” Hall, 579 S.W.3d at 377 (quoting Lipsky, 460 S.W.3d at 590–91); see also CIV.

2024Although a defendant need not plead a prima facie case in a motion for new trial to be entitled to a hearing, the motion “must be supported by an affidavit specifically setting out the factual basis for the claim.” Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim.

2024Id. at 199–200; see Dora v. State, No. 07-21-00293-CR, 2023 Tex. App. LEXIS 9081 , at *6 (Tex. App.—Amarillo Dec. 5, 2023, pet. granted in part) (mem. op., not designated for publication) (requiring the affidavits to reveal the factual basis for the claim; accord Grant v. State, 172 S.W.3d 98 , 2 101 (Tex. App.—Texarkana 2005, no pet.) (stating that when factual matters asserted in a motion for new trial are outside the record, an affidavit “specifically showing the truth of the grounds of attack” is necessary).

2023In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party.” Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.— Houston [14th Dist.] 2013, pet. denied) (citation omitted), disapproved on other grounds by In re Lipsky, 460 S.W.3d at 587–88). “[A] plaintiff must provide enough detail to show the factual basis for its claim.” In re Lipsky, 460 S.W.3d at 591 ; see D Magazine Partners, L.P. v. Rosenthal, 475 S.W.3d 470, 480 (Tex. App.—Dallas 2015), aff’d in part, rev’d in part on other grounds, 529

2022Morning News, Inc. v. Hall, 579 S.W.3d 370 , 376–77 (Tex. 2019) (quoting KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 721 (Tex. 2016)). 4 “Clear and specific evidence means that the plaintiff ‘must provide enough detail to show the factual basis for its claim.’” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (citing In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015)). 5 If, as here, “the alleged defamatory statements were made by a media defendant over a matter of public concern,” then “the plaintiff bears the burden of proving falsity.” Rosenthal, 529 S.W.3d at 434 (citin

2024In determining what constitutes the same subject matter, we examine “the factual basis of the claim or claims in the prior litigation[,]” analyzing “the factual matters that make up the gist of the complaint, without regard to the form of action.” Barr, 837 S.W.2d at 630 .

2024Sav., 837 S.W.2d 627, 629 (Tex. 1992) (“A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation.

2025“Collectively, these elements require that a party ‘provide enough detail to show the factual basis for its claim,’ and thus effectively abrogate the utility of mere notice pleading as ‘evidence’ to that end.” Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.—Austin 2017, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590-91 ).

2023“Collectively, these elements require that a party ‘provide enough detail to show the factual basis for its claim,’ and thus effectively abrogate the utility of mere notice pleading as ‘evidence’ to that end.” Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.—Austin 2017, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590-91 ); see also Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (“Under the Act, more than mere notice pleading is required to establish a plaintiff’s prima facie case.”).

2015A factual basis of a claim is “unavailable” under Subsection (a)(l) “if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date,” and reasonable diligence “suggests at least some kind of inquiry has been made into the matter of the issue.” Ex parte Lemke, 13 S.W.3d 791, 794 (Tex.Crim.App.ZOOO).

2015A factual basis for a claim was Punavailable" on the date the previous app~ lication was filed if it was not ascertainable through the exercise of due dilige- nce on or before that date.See,Ex parte Lemke, 13 S.W.3d 791,793 (Tex.Crim.App.2000).

2023Code § 27.005(c). 9 Prima facie, Garner’s Dictionary of Legal Usage (3d ed. 2011). 10S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)). 5 show the factual basis for the claim.11 Such evidence need not be conclusive, uncontroverted, or found credible.12 In ruling on a motion to dismiss under the Act, the trial court must consider evidence that a party could proffer in connection with a summary judgment motion, as well as “supporting and opposing affidavits stating the facts on which the liability or defense is

2023Code § 27.005(c). 9 Prima facie, Garner’s Dictionary of Legal Usage (3d ed. 2011). 10S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)). 5 show the factual basis for the claim.11 Such evidence need not be conclusive, uncontroverted, or found credible.12 In ruling on a motion to dismiss under the Act, the trial court must consider evidence that a party could proffer in connection with a summary judgment motion, as well as “supporting and opposing affidavits stating the facts on which the liability or defense is

2024When the grounds in a motion for new trial are based on matters not already in the record, the Court of Criminal Appeals requires that the motion “be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.” Smith, 286 S.W.3d at 339 ; Bahm v. State, 219 S.W.3d 391, 395 (Tex. Crim.

2011App. 2009) (“Thus we require, as a prerequisite to a hearing when the grounds in the motion are based on matters not already in the record, that the motion be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.”); Bahm v. State , 219 S.W.3d 391 , 393–94 (Tex. Crim.

2020See Fawcett v. Grosu, 498 S.W.3d 650, 659 (Tex. App.— Houston [14th Dist.] 2016, pet. denied) (noting the “Texas Supreme Court’s interpretation that ‘pleadings and evidence’ setting forth the factual basis for a claim are sufficient to resist a TCPA motion to dismiss”) (quoting In re Lipsky, 460 S.W.3d at 591 ); see also Jetall Cos., Inc. v. Van Dyke, No. 14-19-00104-CV, 2019 WL 2097540 , at *4 (Tex. App.—Houston [14th Dist.] May 14, 2019, no pet.) (mem. op.). 8 A. Misappropriation of Trade Secrets To prevail on a claim for a violation of the Texas Uniform Trade Secrets Act (“TUTSA”), the plai

2017Code § 27.006(a); Fawcett v. Grosu, 498 S.W.3d 650, 660 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Based on section 27.006(a)’s directive (‘the court shall consider the pleading[s] and supporting and opposing affidavits . . . .’) and the Texas Supreme Court’s interpretation that ‘pleadings and evidence’ setting forth the factual basis for a claim are sufficient to resist a TCPA motion to dismiss, Grosu [the non-movant] was permitted to rely on his pleadings (including exhibits) in response to appellants’ motion to dismiss.” (citing Lipsky, 460 S.W.3d at 591 )). 42 more critically) wh

2009See Article 11.071, § 5(a)(1) (prohibiting this Court from considering merits of successive habeas corpus application unless this successive application establishes that "the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this Article ... because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application”); Article 11.071, § 5(e), Tex.Code Crim Proc. (a factual basis of a claim is unavailable on or before a date descr

2009Proc. (a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date). 28. 230 S.W.3d 151, 154 (Tex.Cr.App. 2007). 29.

2024DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). 5 The 2019 amendments to the TCPA apply to the new causes of action, only. 6 Clear and specific evidence means that the “plaintiff must provide enough detail to show the factual basis for its claim.” Id. at 591.

2018A plaintiff must “provide enough detail to show the factual basis for its claim.” Id. at 590–91.

1996Tex.Gov’t Code § 2001.033; Arco, 876 S.W.2d at 491 .

1996TEX.GOV'T CODE § 2001.033; Arco, 876 S.W.2d at 491 .

2026Their existence therefore did not entitle Armstrong to a hearing on her motion. 3 See Smith, 286 S.W.3d at 339 (“[A]s a prerequisite to a hearing when the grounds in the motion [for new trial] are based on matters not already in the record, . . . the motion [must] be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.”); Klapesky v. State, 256 S.W.3d 442, 454 (Tex. App.—Austin 2008, pet. ref’d) (“A motion for new trial alleging facts outside the record without supporting affidavits is not a proper pleading and is defecti

2011Smith, 286 S.W.3d at 339 ; see Hobbs, 298 S.W.3d at 200 n.32 (suggesting also that a verified motion might be sufficient in some instances). ―Filing affidavits in support of a motion for new trial more than [thirty] days after sentencing is considered an untimely attempt to amend the motion.‖ Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.—Austin 2008, pet. ref‘d); see Mallet v. State, 9 S.W.3d 856, 865 (Tex. App.—Fort Worth 2000, no pet.); see also Tex. R.

2025See Ex parte Nelson, 546 S.W.3d at 748 .

2024See id. at 748 (holding trial court did not err in denying applicant’s subsequent habeas application where applicant could not demonstrate that the factual basis of his claim was not ascertainable through the exercise of reasonable diligence before he filed the previous application).

2024Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007); Alanis, 2022 WL 3907925 , at *3.

2009Co. of Am. v. Daccah , 217 S.W.3d 430, 449 (Tex. 2007). Â A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim in the prior lawsuit. Â Barr , 837 S.W.2d at 630 . Â Put another way, we must analyze the factual matters that make up the gist of the complaint. Â Id .

2024Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). • The words “clear and specific” are defined to mean, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or 9 ‘relating to a particular named thing.’” Lipsky, 460 S.W.3d at 590 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)). • “The [party responding to a TCPA motion to dismiss] may rely on circumstantial evidence—indirect evidence that creates an inference to establish a central fact—unless ‘the connection between the fact

2022Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). • The words “clear and specific” are defined to mean, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or ‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding) (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)). • “The [party responding to a TCPA motion to dismiss] may rely on circumstantial evidence—indirect evidence that creates an inference to establish a central fact—unl

2020Knowing Participation in Breach of Fiduciary Duty A claim for knowing participation in breach of fiduciary duty “arises from the rule set forth in Kinzbach Tool Co. v. Corbett-Wallace Corp.” Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720-721 (Tex. App.—Austin 2001, pet. denied) (citing 160 S.W.2d 509, 514 (Tex. 1942)).

2020Knowing Participation in Breach of Fiduciary Duty A claim for knowing participation in breach of fiduciary duty “arises from the rule set forth in Kinzbach Tool Co. v. Corbett-Wallace Corp.” Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720-721 (Tex. App.—Austin 2001, pet. denied) (citing 160 S.W.2d 509, 514 (Tex. 1942)).

2020Third, even if the plaintiff establishes a prima facie case, the defendant can still obtain dismissal if he “establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.” [] § 27.005(d).4 Kawcak, 582 S.W.3d at 572 (quoting Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied)).

2020Third, even if the plaintiff establishes a prima facie case, the defendant can still obtain dismissal if he “establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim.” [] § 27.005(d).2 Kawcak, 582 S.W.3d at 572 (quoting Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied)).

2020Knowing Participation in Breach of Fiduciary Duty A claim for knowing participation in breach of fiduciary duty “arises from the rule set forth in Kinzbach Tool Co. v. Corbett-Wallace Corp.” Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720-721 (Tex. App.—Austin 2001, pet. denied) (citing 160 S.W.2d 509, 514 (Tex. 1942)).

2020Knowing Participation in Breach of Fiduciary Duty A claim for knowing participation in breach of fiduciary duty “arises from the rule set forth in Kinzbach Tool Co. v. Corbett-Wallace Corp.” Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720-721 (Tex. App.—Austin 2001, pet. denied) (citing 160 S.W.2d 509, 514 (Tex. 1942)).

2023“Conclusory statements are not probative and accordingly will not suffice to establish a prima facie case.” Serafine v. Blunt, 466 S.W.3d 352, 358 (Tex. App.— Austin 2015 , no pet.) (op. on reh’g).

2017Establishing a prima facie case by “clear and specific evidence” therefore requires more than mere notice pleading in that “a plaintiff must provide enough detail to' show the factual basis for its claim.”' Id. at 590-91 (acknowledging the TCPA initially demands more information from the plaintiff about the claim, but rejecting the argument that the statute imposes an elevated évidentiary standard). “[T]he term ‘clear and specific évidénce’ refers to the quality of evidence required to establish a prima facie case, while the term ‘prima facie case’ refers to" the amount of evidence required to

2020Id. (internal quotation marks omitted).

2019But even if the nonmovant/plaintiff satisfies this step-two burden and presents a prima facie case by clear and specific evidence, “the trial court must dismiss the legal action if the [defendant] establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff’s] claim.” Grant, 556 S.W.3d at 873 (internal quotation marks omitted); see Tex. Civ.

2020Further, “as a prerequisite to a hearing when the grounds in the motion are based on matters not already in the record,” and to prevent fishing expeditions, a motion for new trial must be “supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim.” Smith, 286 S.W.3d at 339 ; Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

2014Hobbs, 298 S.W.3d at 199 ; Chapa, 407 S.W.3d at 431 .