Fiberwave v. AT&T Enterprises

2026 Tex. Bus. 2

The Business Court of Texas,
First Division
FIBERWAVE, INC., f/k/a §
SPEARHEAD CONSULTING, INC., §
Plaintiff, §
v. §
AT&T ENTERPRISES, LLC, f/k/a §
AT&T CORP., §
Defendant/Counter-Plaintiff, § Cause No. 25-BC01A-0013
v. §
FIBERWAVE, INC., f/k/a §
SPEARHEAD CONSULTING, INC., §
SPEARHEAD NETWORKS TECH, §
INC., FAISAL CHAUDHRY, and §
CHRIS PERCY, §
Counter-Defendants. §
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Memorandum Opinion and Order Granting Defendant’s Motion for
Summary Judgment on Plaintiff’s Defamation Claim
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¶1 Before the Court is Defendant AT&T Enterprises, LLC’s

Traditional and No-Evidence Motion for Summary Judgment on Plaintiff’s

Defamation Claim and attendant briefing. Defendant chiefly argues that

Plaintiff has proffered no evidence of a false, defamatory statement or that
AT&T knew or should have known of its falsity. See AT&T’s Motion at p. 1.

Concluding that the summary judgment record reflects no evidence of either

element, the Court GRANTS Defendant’s motion.

I. Applicable Legal Standard

¶2 After adequate time for discovery, a party may move for summary

judgment on an opposing party’s claims on no-evidence grounds. Tex. R. Civ.

P. 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). Such

a motion “puts the burden on the nonmovant ‘to present evidence raising an

issue of material fact as to the elements specified in the motion.’” State v.

Three Thousand, Seven Hundred Seventy-Four Dollars and Twenty-Eight Cents

U.S. Currency ($3,774.28), 713 S.W.3d 381, 387 (Tex. 2025) (quoting Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).

¶3 A trial court will grant a no-evidence motion if “there is a

complete absence of evidence of a vital fact,” or when “the evidence offered

to prove a vital fact is no more than a mere scintilla.” Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of

evidence exists when the evidence is ‘so weak as to do no more than create a

mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118

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S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)).

II. Summary of AT&T’s Motion

¶4 By its suit, Fiberwave alleges that the following statement—

communicated via email by AT&T to its “solution providers” on April 3,

2024—constituted textual defamation by implication: 1

Acting with integrity and doing the right thing are part of our
culture. These values underpin how we operate and upholding
them can require making difficult business decisions. We want to
let you know that we have decided to end our business relationship
with one of our Alliance Channel partners, specifically Spearhead
Consulting, also known as FiberWave and related entities
(collectively, “Spearhead”).

Fiberwave’s Response Ex. 1-A at p. 2. Fiberwave claims that this statement

“cunningly implied that Fiberwave’s business was not conducted with

integrity or with doing the right thing in mind, and AT&T was thus forced to

terminate its business with Fiberwave.” Fiberwave’s Response at ¶ 10.

¶5 AT&T primarily moves for judgment on Fiberwave’s defamation

claim on no-evidence grounds. To prevail on a cause of action for defamation,

1
Fiberwave alleges that AT&T reiterated its defamatory statement in a second email on
April 18, 2025. The second email is subject to an agreed protective order. The allegedly-
defamatory content in the two emails is substantially the same, making the application of
the law the same for both communications.
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a plaintiff must prove “(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.” In re Lipsky, 460 S.W.3d

579, 593 (Tex. 2015). AT&T’s motion challenges Fiberwave’s claim on the

second and third elements. 2 See AT&T’s Motion at p. 1.

III. Analysis

A. A False and Defamatory Statement

¶6 AT&T contends Fiberwave has “no evidence that AT&T

published a false and defamatory statement.” AT&T’s Motion at p. 3. The

Court agrees. The statements by AT&T about which Fiberwave complains are

not objectively verifiable and therefore, as a matter of law, are not

defamatory. 3 Further, Fiberwave proffered no evidence of this element,

2
AT&T’s motion first sought traditional summary judgment by challenging Fiberwave’s
standing and lastly argued that Fiberwave had no evidence of damages. See AT&T’s Motion
at p. 1. AT&T subsequently abandoned its first argument, leaving only the no-evidence
motion before the Court. See AT&T’s Reply at p. 2, n. 1. And as acknowledged by AT&T in
its Reply, the Court need not reach the issue of damages. See id.

3
Fiberwave argues that AT&T failed to raise “the objectively verifiable fact ground in [its]
motion.” But a movant for no-evidence summary judgment need only identify the
challenged elements to provide adequate notice to the non-movant. See State, 713 S.W.3d
at 388. Whether a statement is objectively verifiable goes directly to the element of the
existence of a false and defamatory statement, which AT&T’s motion expressly challenged.
See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018) (noting that
“statements that are not verifiable as false are not defamatory” (internal quotation
omitted)). Thus, the issue was sufficiently raised by AT&T’s motion.
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offering only a conclusory declaration expressing opposing opinions.

Accordingly, judgment for AT&T on this issue is warranted.

¶7 To be defamatory, a statement must be verifiable as false. Dallas

Morning News, Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018); see Lilith

Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023)

(distinguishing between defamatory statement and opinion). A court assaying

the verifiability of a challenged statement will take into consideration the type

of writing in which the statement was made and pay particular attention to the

context in which the statement was made. See Dallas Morning News, 554

S.W.3d at 639. This is so because “even when a statement is verifiable as false,

it does not give rise to liability if the ‘entire context in which it was made’

discloses that it is merely an opinion masquerading as fact.” Id. (quoting

Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002)). Whether an allegedly

defamatory statement is “a verifiable falsity is a question of law.” Lilith Fund,

662 S.W.3d at 363.

¶8 AT&T argues that under existing precedent the challenged

statements are not defamatory because they involve an opinion—an

“individual judgment that rests solely in the eye of the beholder.” AT&T

Reply at p. 3 (quoting Avila v. Larrea, 394 S.W.3d 646, 659 (Tex. App.—
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Dallas 2012, pet. denied)). AT&T points the Court to numerous cases in which

courts held that sentiments akin to those allegedly implied by AT&T’s emails

were not actionable defamation. See id. at pp. 3-4 (citing, among others,

Paulsen v. Yarrell, 537 S.W.3d 224, 237 (Tex. App.—Houston 2017, pet.

denied) (“grave breach of legal ethics”); Neurodiagnostic Consultants, LLC v.

Villalobos, No. 03-18-00743-CV, 2019 WL 4892220, at *4 (Tex. App.—

Austin Oct. 4, 2019) (mem. op.) (“dirty”), McConnell v. Coventry Health Care

Nat’l Network, No. 05-13-01365-CV, 2015 WL 4572431, at *10 (Tex. App.—

Dallas July 30, 2015, pet. denied) (mem. op.) (“unprofessional”); Ruder v.

Jordan, No. 05-14-01265-CV, 2015 WL 4397636, at *5 (Tex. App.—Dallas

July 20, 2015, no pet.) (mem. op.) (“incompetent” or “mentally unstable”);

Teel v. Deloitte & Touche LLP, No. 3:15-CV-2593-G, 2015 WL 9478187, at *7

(N.D. Tex. Dec. 29, 2015) (mem. op.) (“untrustworthy, sloven, lazy and

unproductive,” “unreliable”)).

¶9 For its part, Fiberwave relies on Cullum v. White, 399 S.W.3d 173

(Tex. App.—San Antonio 2011, pet. denied), for the proposition that honesty,

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integrity, and ethics are objectively verifiable. 4 But in Cullum, the defendant

did not just impugn plaintiffs’ honesty, integrity, or ethics. Rather, in

conjunction with such aspersions, the defendant published “facts” in support

thereof capable of verification, including going so far as to accuse plaintiffs of

“illegal activity.” See id. at 183. Defendant’s communications charged

plaintiffs with specific actions including “shooting and killing a Mexican

transient on the Ranch,” “us[ing] a four wheeler to chase the animals around

the Ranch,” “ignoring illegal activity,” and the like as factual predicates for

broader comments on plaintiffs’ business operations. Id. at 182-83. The court

did not indicate whether general denunciations of plaintiffs’ ethics would still

be actionable in the absence of their accompanying factual contexts. See

generally id. And the instant case does not compare.

¶10 AT&T’s allegedly-defamatory statements—even assuming they

imply, as Fiberwave contends, that Fiberwave lacks honesty and integrity and

4
Fiberwave also cites Shipp v. Malouf, 439 S.W.3d 432 (Tex. App.—Dallas 2014, pet.
denied), for the proposition that “questioning the solvency or honesty of a merchant in
business is actionable [defamation] per se.” Id. at 440. But Shipp involved a false public
statement that a dentist had declared bankruptcy and whether that constituted defamation
per se. See id. at 441. The case did not involve statements about (dis)honesty, nor did the
court delve into what constitutes objective verifiability. See generally id. Moreover, the
same court, the following year, held that a defendant’s comment calling plaintiff
“unprofessional” was “merely opinion and not an objectively verifiable fact.” McConnell,
2015 WL 4572431, at *10. Thus, Shipp is not persuasive.
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does not do the right thing—communicated no allegations of any verifiable act

or omission by Fiberwave. The significance of this is best illustrated by

Fiberwave’s sole evidence of the falsity of AT&T’s statements: a declaration

from Fiberwave’s CEO, Chris Percy, asserting—equally generally—that

“Fiberwave operated, and continues to operate, its business with honesty and

integrity” and that “Fiberwave also emphasized, and continues to emphasize,

doing the right thing as part of its culture and business.” Fiberwave’s

Response Ex. 1 at ¶ 8; Fiberwave’s Response at ¶ 43. What is missing is a yard

stick (i.e., verifiable facts) by which any reasonable fact-finder could measure

the veracity of the conclusory statements.

¶11 The absence of verifiable facts in Percy’s declaration renders it of

no evidentiary value. See, e.g., In re Lipsky, 460 S.W.3d at 592-93 (stating

that “[b]are, baseless opinions do not create fact questions” and that

“[o]pinions must be based on demonstrable facts and a reasoned basis”).

“[A]n affidavit that is nothing more than a sworn repetition of allegations in

the pleadings has no probative force, as the statements are no more than

conclusions or a mere surmise or suspicion.” Brookshire Katy Drainage Dist.

v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). Percy's declaration simply re-states, in the negative,
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AT&T’s implied message—according to Fiberwave, broad generalizations

assailing its integrity. Thus, it amounts to no evidence of a false or defamatory

statement.

¶12 In sum, the Court is persuaded by AT&T’s argument that the

implications of AT&T’s emails—assuming they are what Fiberwave alleges—

reflect only non-verifiable opinions, or beliefs that lie “in the eye of the

beholder.” Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 511 (Tex.

App.—Tyler 2008, pet. denied); see also Schauer v. Mem’l Care Sys., 856

S.W.2d 437, 446 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (“A

statement may be false, abusive, unpleasant, and objectionable to the plaintiff

without being defamatory.”). Honesty, integrity, and doing the right thing are

similar concepts to those found to be “somewhat indefinite and ambiguous”

and susceptible to variance “from person to person.” See Palestine Herald-

Press, 257 S.W.3d at 511-12. But even if they could be proven objectively,

Percy’s declaration attempting to refute AT&T’s statements is wholly

conclusory and amounts to no evidence. For these reasons, the Court GRANTS

summary judgment in favor of AT&T on Fiberwave’s defamation claim.

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B. Negligence

¶13 AT&T’s motion also challenged Fiberwave’s ability to prove the

requisite degree of fault, here: negligence. See In re Lipsky, 460 S.W.3d at 593.

“[T]he defendant is negligent if it knew or should have known a defamatory

statement was false.” D Mag. Partners, L.P. v. Rosenthal, 529 S.W.3d 429,

440 (Tex. 2017) (internal quotation omitted).

¶14 In its Reply, AT&T correctly notes that “Fiberwave’s response is

devoid of any evidence (or even argument) that AT&T knew or should have

known that the challenged statement was false and defamatory.” AT&T’s

Reply at p. 5. At the December 17 hearing, Fiberwave orally referenced

evidence outside the summary judgment record attempting to establish that

AT&T knew Fiberwave was, in a sense, not unethical or criminal—which is

distinguishable from proof of honesty or integrity (that is, differentiating the

absence of bad acts from the existence of good or noble ones). But the Court

only considers evidence expressly referenced in the response to the motion.

See Lance v. Robinson, 543 S.W.3d 723, 732 (Tex. 2018) (approving

consideration of evidence not attached to summary-judgment motion only

when “expressly ‘referenced and specified’” in motion); De La Garza v. Bank

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of N.Y. Mellon, No. 02-17-00427-CV, 2018 WL 5725250, at *3 (Tex. App.—

Fort Worth Nov. 1, 2018, no pet.) (mem. op.).

¶15 While summary judgment in favor of AT&T is already supported

by the Court’s determination that the alleged statements are not objectively

verifiable and that Fiberwave failed to adduce any evidence of a false and

defamatory statement by AT&T, this second basis further supports the

granting of AT&T’s motion. Accordingly, on the additional grounds that

Fiberwave offered no evidence of the requisite degree of fault, the Court

GRANTS summary judgment in favor of AT&T on Fiberwave’s defamation

claim.

IV. Order

¶16 IT IS THEREFORE ORDERED that Defendant AT&T Enterprises,

LLC’s Traditional and No-Evidence Motion for Summary Judgment on

Plaintiff’s Defamation Claim is GRANTED.

_______________________
ANDREA K. BOURESSA
Judge of the Texas Business Court,
First Division

SIGNED ON: January 8, 2026.

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