David Darrigan v. the American Prospect, Inc., Maureen Tkacik, David Dayen, and Greg Hansen

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00061-CV
___________________________

DAVID DARRIGAN, Appellant

V.

THE AMERICAN PROSPECT, INC., MAUREEN TKACIK, DAVID DAYEN,
AND GREG HANSEN, Appellees

On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 23-7737-431

Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

This case involves the Texas Citizens Participation Act (TCPA). See Tex. Civ.

Prac. & Rem. Code Ann. §§ 27.001–.011. Appellant David Darrigan sued The American

Prospect, Inc., Maureen Tkacik, David Dayen (collectively, Prospect), and Greg Hansen

for defamation following the publication of an article by Prospect. 1 Prospect and

Hansen filed TCPA motions to dismiss, and the trial court granted the motions and

awarded both attorney’s fees and sanctions. Darrigan contends that both the dismissal

under the TCPA and the award of attorney’s fees and sanctions were error. Because we

will conclude that Darrigan did not establish by clear and specific evidence a prima facie

case as to each of his claims, we will hold that Prospect and Hansen were entitled to a

dismissal under the TCPA and that the trial court did not err in awarding attorney’s fees

and sanctions.

I. Background

In 2019, American Physician Partners (APP) purchased an emergency room (ER)

staffing company where Darrigan was employed. After the sale, Darrigan served as a

regional medical director for APP, overseeing the staffing of hospital ERs. Darrigan’s

testimony is that he was against joining APP but continued to work there until March

1
Darrigan also alleged several other causes of action and theories of liability or
recovery against all named defendants: tortious interference with prospective
relationships, business disparagement, negligence, intentional infliction of emotional
distress, conspiracy, ratification, and aiding and abetting.

2
2023. 2 Following his resignation from APP, Darrigan started a new management

company called Elite Hospital Partners (Elite). According to Darrigan, he then began

discussions with several hospitals to have Elite take over their ER staffing.

On July 29, 2023, The American Prospect, Inc. published an article (the Article)

written by Tkacik, detailing the fall of APP: “Shock Treatment in the Emergency Room:

The Lehman-like collapse of a(nother) private equity-owned ER operator has

physicians calling louder than ever for a strike.” According to the Article, APP staffed

approximately 135 hospital ERs and “freestanding” ERs in 18 states. Tkacik stated in

the Article that she spoke with seven emergency room physicians, and they told her that

it was common for “ownership transitions” to occur but that this was “unlike anything”

they had experienced before.

In early July 2023, APP told physicians that the company was being acquired by

another company, and then on July 17, APP claimed that the “deal . . . was off” and

that it no longer had the liquidity to continue operations. When the Article was first

published less than two weeks later, APP had not yet filed for bankruptcy, and multiple

rumors were circulating that physicians may not be paid for work done in June or July.

The Article detailed additional issues stemming from APP’s collapse, such as the lack

of sponsorship of work visas for international clinicians and the loss of malpractice

insurance.

2
Emails Darrigan’s attorney sent to Tkacik stated that Darrigan resigned on
June 5, 2023.

3
Along with those issues, the Article indicated that, because APP’s collapse had

abrogated its physician contracts, some hospitals and mega-practices had begun to

exploit the ensuing panic, inducing doctors to sign new contracts without negotiations.

Tkacik shined a spotlight on APP’s three founders and concluded that APP was a victim

of its own unprofessionalism and “frat house culture.” After discussing APP’s three

founders, Tkacik made several statements about Darrigan.

The Article reported that Darrigan was one of APP’s “favored insiders” and

“rose through the ranks at the company despite a controversial side gig running two

cafés that sell drinks spiked with the mood-altering herbs known as kratom and kava.”3

3
The word “controversial” appears to be hyperlinked (it is underlined) in the
printout of the Article filed with Darrigan’s petition, and allegedly the hyperlink opened
to a five-page Word document with an unsigned letter to the American Board of
Emergency Medicine (ABEM), detailing concerns about Darrigan’s ownership of kava
cafés, the dangers of kava, delta-8 THC, and kratom, along with the author’s opinion
that Darrigan’s “promotion” of the substances is “unbecoming of an ABEM member”
and a physician.

Kava is “an Australasian shrubby pepper (Piper methysticum) from whose crushed
root an intoxicating beverage is made; the dried rhizome and roots of the kava used
especially as a dietary supplement chiefly to relieve stress and anxiety.” Kava, Merriam-
Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/kava
(last visited Aug. 12, 2025). “Kratom is a tropical tree native to Southeast Asia.
Consumption of its leaves produces both stimulant effects (in low doses) and sedative
effects (in high doses), and can lead to psychotic symptoms, and psychological and
physiological dependence. Kratom leaves contain two major psychoactive ingredients
(mitragynine and 7-hydroxymitragynine). These leaves are crushed and then smoked,
brewed with tea, or placed into gel capsules.” See Drug Fact Sheet: Kratom (Apr. 2020),
https://www.dea.gov/sites/default/files/2020-06/Kratom-2020_0.pdf; see also A.B. v.
Tex. Dep’t of Fam. and Protective Servs., No. 03-22-00759-CV, 2023 WL 3235814, at *3 n.5
(Tex. App.—Austin May 4, 2023, no pet.) (mem. op.) (recounting testimony concerning

4
This was followed by a parenthetical indicating that a kava bar franchisor had sued

Darrigan “for stealing its trade secrets.” According to the Article, Darrigan’s “upstart

ER practice” had “recently secured” a former APP contract to staff Comanche County

Memorial Hospital (CCMH) in Oklahoma. Immediately following this statement, a

source commented that “such ‘insider deals’ [had] led some physicians to suspect the

desire to discreetly award plum contracts to company ‘favorites’” may have been

responsible for APP’s delayed bankruptcy filing.

The day after the Article was published, Darrigan’s attorney, Adam Allen,

emailed Tkacik to “clear up the [inaccurate] reporting” in the Article. According to

Allen, Darrigan had first sued franchisor Kava Culture in April 2023 for “fraudulent

inducement[] and violations of many consumer protection statutes and . . . a few

criminal statutes.” Darrigan’s lawsuit was still pending when the Article was published.

Allen claimed that Kava Culture then “responded” to Darrigan’s lawsuit with one of its

own, claiming that Darrigan stole trade secrets. Allen also explained that Kava Culture’s

lawsuit had been dismissed in May 2023, but Kava Culture had refiled in a Florida state

father’s drug use in termination proceed, including positive drug test for kratom, which
described kratom as a substance with “opioid-like effects” that in higher doses is mind-
altering).

5
court a week later. The email requested that Tkacik include “these facts as an update to

[her] article.”4 Tkacik and Allen also spoke on the phone about the Article.

The Article was updated around July 31, or August 1, 2023, to remove the

hyperlink to the Word document and to add information regarding the Kava Culture

lawsuits. On August 23, 2023, Allen sent a letter to The American Prospect, Inc. in

Washington, D.C., complaining about the depiction of Darrigan in the Article. The

letter claimed that “[a]lthough the preponderance of the [A]rticle focused on the

seemingly immoral behavior of APP and its potentially questionable business tactics,”

it also “took an odd detour” when it made “unrelated accusations against [Darrigan].”

The letter served as Darrigan’s “final demand for a retraction of the entirety of the

statements concerning him.” Prospect claims that the failure to address the letter to a

person—it was addressed to “Publisher”—caused Prospect to be unaware of the

demand until after the lawsuit had been filed.

4
Allen later emailed Tkacik again to request changes to the Article—denying that
Darrigan was an “insider of APP” or had received any APP contracts and disputing that
Darrigan had secured the CCMH contract “earlier this year” as alleged in the Article.
Allen also complained that the “Word doc draft alleging [Darrigan’s] lack of fitness to
be a medical doctor” was still on the website. Tkacik stated that she did not receive the
subsequent emails due to a server error that she had informed Allen about when they
spoke on the phone.

6
Shortly thereafter, on August 31, 2023, Darrigan sued Prospect and Hansen.5

Tkacik identified Hansen as one of the sources for the Article, and Darrigan believed

Hansen wrote the letter to ABEM that was hyperlinked in the original Article. Darrigan

also alleged that Hansen harbored a grudge against him. Darrigan’s original petition

included nine causes of action and theories of liability: slander, libel, tortious

interference with prospective relationships, business disparagement, negligence,

intentional infliction of emotional distress, conspiracy, ratification, and aiding and

abetting.

Prospect then filed a motion to dismiss under the TCPA on all Darrigan’s alleged

causes of action.6 Prospect denied Darrigan’s defamation claims, stating that the Article

was merely “truthful and accurate reporting regarding matters of significant public

concern.” Prospect’s TCPA motion to dismiss argued that the statements about

Darrigan were only a small part of the Article—contained in “a single paragraph near

the end of a 2,800-word article”—and were accurately represented based on Tkacik’s

thorough research. According to Prospect, the Article’s reporting on matters of public

concern were “exactly” what the TCPA was enacted to protect. Prospect also contested

5
Arthur Smolensky—another of Tkacik’s sources—was also named as a
defendant but was non-suited with prejudice prior to the TCPA motion to dismiss
hearing.

Prior to filing the TCPA motions to dismiss, both Prospect and Hansen filed
6

answers with special exceptions and affirmative defenses, identifying that there was a
TCPA issue.

7
the remainder of Darrigan’s causes of action, calling them “tag-along” claims. Prospect

argued that because these claims were based on the same article that gave rise to the

defamation claims, the fair report and fair comment privileges and the third-party

allegation rule would apply.

Hansen filed a “Joinder in Prospect Defendants’ Motion to Dismiss Claims

Pursuant to the Texas Citizens Participation Act.” In his motion, Hansen “adopt[ed]

and incorporate[d] by reference the Prospect Defendants’ Motion to Dismiss.” Hansen

claimed that any statements he made were not capable of defamatory meaning because

“they are substantially true and/or constitutionally protected opinions.” Additionally,

Hansen—like Prospect—argued that Darrigan’s additional causes of action failed

because the claims were based on the defamation claim and Darrigan could not prove

damages.

Darrigan filed a response to the TCPA motions to dismiss, along with fifteen

declarations and four additional exhibits. Darrigan argued that the overall gist of the

Article—coupled with the specific statements about him—tarnished his reputation and

caused him to lose a substantial amount of money. Darrigan took specific issue with

the allegations (1) that he was an insider who rose through the ranks at APP, (2) that he

acquired the contract with CCMH as a result of this insider status, and (3) that he sold

“spiked” drinks at his kava bar or stole trade secrets. Darrigan claimed that the Article

damaged his reputation, and that because his occupation was connected to his

reputation, the statements caused financial loss as well.

8
The trial court heard the TCPA motions to dismiss on December 20, 2023.

Before the hearing, Prospect filed a reply to Darrigan’s response, along with objections

to, and a motion to strike, each of the fifteen declarations attached to his response.

According to Prospect, the declarations were inadmissible because several of the

statements violated the Texas Rules of Evidence. Darrigan responded to the objections

and requested leave to amend the declarations. The trial court overruled Prospect’s

objections and denied the motion to strike. The trial court also denied Darrigan’s request

to amend the declarations, stating that it would “consider them all for what they are.”

Following the hearing, the trial court granted both Prospect’s and Hansen’s

TCPA motions to dismiss, disposing of all claims, theories of liability, and parties. The

trial court later awarded attorney’s fees and sanctions against Darrigan to both

defendants. This appeal followed.

Darrigan raises seven issues on appeal. 7 Because many of the issues overlap, we

have consolidated our discussion of the issues into three sections: (1) evidentiary

challenges—issues one and two; (2) the TCPA motions to dismiss—issues three, four,

7
The seven issues Darrigan alleges are (1) whether the trial court abused its
discretion by excluding Darrigan’s corrected declarations; (2) whether the trial court
implicitly granted Prospect’s objections to Darrigan’s original declarations; (3) whether
the trial court erred by granting Hansen’s Anti-SLAPP joinder motion; (4) whether the
trial court erred by “granting Appellees’ TCPA motions to dismiss”; (5) whether there
was “legally and factually sufficient evidence to grant Appellees’ TCPA motion”;
(6) whether there was legally and factually sufficient evidence to award attorney’s fees
and sanctions to Appellees; and (7) whether the trial court abused its discretion by
granting the TCPA motions and awarding attorney’s fees and sanctions.

9
and five; and (3) the TCPA award of attorney’s fees and sanctions—issues six and

seven.

II. Evidentiary Challenges

Darrigan argues in his first and second issues that the trial court impermissibly

denied him the opportunity to correct or amend the declarations submitted with his

response to the TCPA motions to dismiss.

A. Standard of Review

We review a trial court’s rulings in admitting or excluding evidence for an abuse

of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020). We must uphold the trial

court’s evidentiary ruling if the record shows any legitimate basis for the ruling. Owens-

Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

B. Discussion

Darrigan claims that the trial court not only denied his amendments, but by doing

so, implicitly denied his originally filed declarations. But this misinterprets the trial

court’s ruling. Prospect filed objections to each of the attached declarations, along with

a motion to strike. Then, presumably in response to the raised objections to the

declarations, Darrigan requested leave to amend or correct the errors. The trial court

overruled all of Prospect’s objections as well as the motion to strike. The trial court also

10
denied Darrigan’s request to amend.8 Regarding the original declarations filed, the trial

court stated that it would “consider them all for what they are.” The declarations that

Darrigan filed and those he sought to file as amendments are substantially the same,

save for the objected-to phrase that some of the statements were not based on the

declarant’s personal knowledge, but on the “true and correct documents and testimony

already before the court.”

Darrigan argues that the written ruling on Prospect’s motion to strike includes

language that implicitly excluded all the declarations because the motion had stated the

trial court would “consider [the] probative value” of the evidence, “as appropriate, in

accordance with the Texas Rules of Evidence.” Darrigan points to Rule 602 of the

Texas Rules of Evidence which states that “[a] witness may testify to a matter only if

evidence is introduced sufficient to support a finding that the witness has personal

8
The order denying Darrigan’s request to amend the declarations states that the
trial court “declines to consider any pleadings, motions or evidence filed after December
17, 2023, in accordance with Local Rule 1.12.” The text of Local Rule 1.12 does not
appear in the record, but we may take judicial notice of information contained on a
governmental website. See In re Reed, No. 02-22-00113-CV, 2022 WL 1405520, at *9, n.1
(Tex. App.—Fort Worth May 4, 2022, orig. proceeding) (citing City of El Paso v. Fox, 458
S.W.3d 66, 71–72 (Tex. App.—El Paso 2014, no pet.)). Local Rule 1.12 concerns the
submission of briefs in relation to a scheduled hearing. See Rule 1.12, Uniform Rules of Court
for the District and Statutory County Courts of Denton County, Texas, (Feb. 27, 2025),
https://www.dentoncounty.gov/DocumentCenter/View/957/Uniform-Rules-of-Court-
for-the-District-and-Statutory-County-Courts-of-Denton-County-Texas-PDF. Darrigan’s
request to amend was not related to a brief, but to declarations. Because we must uphold
a trial court’s evidentiary ruling if there is any legitimate basis for the ruling, we decline
to consider the applicability of Local Rule 1.12 under these circumstances. See Malone,
972 S.W.2d at 43; see also Tex. R. App. P. 47.1.

11
knowledge of the matter.” Tex. R. Evid. 602. Statements of personal knowledge cannot

be conclusory and must “furnish some factual information that could have been

rebutted.” La China v. Woodlands Operating Co., LP, 417 S.W.3d 516, 520 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (discussing statements made with personal

knowledge in affidavits for consideration of a summary-judgment award).

Upon our review of the evidence, it is clear what statements are based on

personal knowledge and which are not. 9 Id. (holding conclusory statements fail to

provide underlying facts to support the conclusion (citing LeBlanc v. Lamar State Coll.,

232 S.W.3d 294, 301 (Tex. App.—Beaumont 2007, no pet.))). The trial court is

permitted to consider those statements that are demonstrably made with a declarant’s

personal knowledge. See Williams v. Conroe Indep. Sch. Dist., 809 S.W.2d 954, 958–59 (Tex.

App.—Beaumont 1991, no writ) (holding that in the absence of a proper averment of

truth and personal knowledge in an affidavit, the trial court may only consider those

statements that are in the “inherent” personal knowledge of the declarant).

9
Some examples of statements made without personal knowledge are as follows:
“I can only assume the decision was made based on the bad press”—with no additional
support; “Anyone that read the [Article] would believe Darrigan was a nut job”—with
no evidence to support that someone else did believe this and the declarant even stating
that he disagreed with the Article; “I am unaware of all the financial and professional
implications . . . , but I imagine that it would be substantial”—with no additional
support.

12
Moreover, Darrigan’s first filed declarations were substantively the same as the

amended declarations.10 Thus, the trial court did not abuse its discretion in preventing

Darrigan from submitting amended declarations. Additionally, Darrigan does not point

to anything to show, and the record also does not support, that the trial court did not

consider the declarations Darrigan first filed.11 Accordingly, because we do not

conclude that the trial court abused its discretion in denying Darrigan the opportunity

to amend his declarations, we overrule Darrigan’s first and second issues.

III. The TCPA Motions to Dismiss

A. Standard of Review

We review a trial court’s grant of a TCPA motion to dismiss de novo. USA

Lending, 669 S.W.3d at 200. We consider the pleadings, the evidence a trial court could

consider under Rule 166a, and any supporting and opposing affidavits. Tex. Civ. Prac.

& Rem. Code Ann. § 27.006(a). We view the pleadings and evidence in the light most

favorable to the nonmovant. Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843,

at *8 (Tex. App.—Fort Worth Mar. 11, 2021, no pet.) (mem. op.) (citing Robert B. James,

DDS, Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.—San Antonio 2018, pet. denied)).

10
Some of the proposed amendments still contain the improper language that the
declaration was made “based on the true and correct documents and testimony already
before the court”—which does not constitute personal knowledge.
11
Further, even if the trial court did not review the evidence, as we will explain,
we must review a dismissal under the TCPA de novo—and thus, we have reviewed the
declarations. See USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023).

13
B. Applicable Law

“The TCPA is popularly known as the Texas Anti-SLAPP statute, referring to

Strategic Lawsuits Against Public Participation.” Bookout v. Shelley, No. 02-22-00055-

CV, 2022 WL 17173526, at *10 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem.

op.). The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or

silence them on matters of public concern and provides the procedure for the expedited

dismissal of such lawsuits. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig.

proceeding). The purpose of the TCPA is “to encourage and safeguard the

constitutional rights of persons to petition, speak freely, associate freely, and otherwise

participate in government to the maximum extent permitted by law and, at the same

time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

Tex. Civ. Prac. & Rem. Code Ann. § 27.002.

The TCPA employs a three-step process to determine whether a claim is subject

to dismissal. See McShirley v. Lucas, No. 02-23-00229-CV, 2024 WL 976512, at *3 (Tex.

App.—Fort Worth Mar. 7, 2024, pet. denied) (mem. op.). First, the party invoking the

TCPA must demonstrate that the legal action against it is “based on or is in response

to” (1) the party’s exercise of the rights of free speech, to petition, or of association

protected under the TCPA or (2) “the act of a party described by Section 27.010(b).”

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Second, if the moving party meets its

initial burden, the burden then shifts to the nonmoving party to show by clear and

specific evidence a prima facie case for each essential element of its claim. Id.

14
§ 27.005(c). If neither the pleadings nor the evidence can show the requisite details, the

nonmovant fails to meet his burden, and the movant is entitled to a dismissal. Stickland

v. Schlegel, No. 02-22-00281-CV, 2023 WL 8112889, at *19 (Tex. App.—Fort Worth

Nov. 22, 2023, pet. denied) (mem. op.) (citing NexPoint Advisors, L.P. v. United Dev.

Funding IV, 674 S.W.3d 437, 446–47 (Tex. App.—Fort Worth 2023, pets. denied)).

Finally, if the nonmoving party satisfies the step-two requirement, the burden then

shifts back to the movant to establish “an affirmative defense or other grounds on

which the moving party is entitled to judgment as a matter of law.” Tex. Civ. Prac. &

Rem. Code Ann. § 27.005(d). We employ the same three-step analysis in reviewing a

trial court’s ruling on a TCPA motion to dismiss. See Youngkin v. Hines, 546 S.W.3d 675,

679 (Tex. 2018).

C. Prospect

Darrigan’s fourth and fifth issues challenge the trial court’s grant of the

Appellees’ motions to dismiss, claiming that the evidence was not sufficient to do so.

We first address these issues as to Prospect.

Prospect contends that each of Darrigan’s claims fall within the purview of the

TCPA because it is a media company and was reporting on a matter of public concern

for the community. Prospect claims the Article “detailed the impending demise of

[APP], one of the nation’s largest employers of [ER] doctors,” and that it reported “on

the concerns of ER doctors as APP collapsed, including questions about why APP was

delaying its bankruptcy filing, who would take over APP’s existing [ER] contracts, and

15
how physicians could secure critical insurance coverage that had previously been

provided by APP.”

Darrigan’s original petition claimed that various statements in the Article painted

him in an unfavorable light, insinuating that he was “drugging his clientele without their

consent, hurting his customers, being unethical in his medical . . . and his business

practices, and being an insider of a corrupt company.” Specifically, Darrigan complains

about three “categories” of statements in the Article: the portrayal of the kava bars he

owned (that he was selling spiked drinks),12 the theft of trade secrets and pending

litigation related to the kava bars, and the characterization of him as an “insider” at APP

who “rose through the ranks.” Darrigan also takes issue with what he believes is the

insinuation that his “insider” status was somehow responsible for his securing the

contract to staff CCMH.

1. Step One

The first step is to determine the TCPA’s applicability. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.005(b). Prospect will have met this initial burden if it can show that

Darrigan’s suit is based on or in response to the exercise of free speech—as claimed in

this case. Id.

12
As related to the portrayal of the kava bars, Darrigan also references the Word
document that he claims Hansen wrote. Because the complaint is also about Darrigan’s
association with selling kava drinks, we discuss the Word document and the Article
together for the purpose of step one.

16
To determine if the Article is an exercise of free speech under Chapter 27, we

look to the language of the statute. Prospect argues that the Article is an exercise of free

speech on matters of concern and significant interest to the public—specifically, the

staffing and operation of hospital ERs and the distribution and endorsement of mood-

altering substances by a physician.

Matters of public concern constitute the exercise of the right of free speech

under the statute. Id. § 27.001(3). A “matter of public concern” is a statement or activity

regarding a public official, public figure, or person who has drawn substantial public

attention 13; a matter of political, social, or other interest to the community; or a subject

of concern to the public. See id. § 27.001(7)(A)–(C).

Courts have held that the provision of medical services by health care

professionals are matters of public concern. See Lippincott v. Whisenhunt, 462 S.W.3d 507,

510 (Tex. 2015); Oncology-Hematology Consultants v. Locke, No. 14-21-00733-CV, 2023 WL

166309, at *5 (Tex. App.—Houston [14th Dist.] Jan. 12, 2023, no pet.) (mem. op.);

Pisharodi v. Columbia Valley Healthcare Sys., L.P., 622 S.W.3d 74, 82–83 (Tex. App.—

Corpus Christi–Edinburg 2020, no pet.). Further, “when a health care provider engages

in communications relevant to an employee’s ability to safely and competently provide

13
Prospect claims—and Darrigan disputes—that Darrigan is a limited-purpose
public figure. Because we will determine that the statements made are subjects of
concern to the public under Section 27.001(7)(C), we need not decide if Darrigan is a
public figure or not. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a
written opinion that is as brief as practicable,” while still addressing all issues “necessary
to final disposition of the appeal.”).

17
medical services to patients, such communications relate to health and safety issues

impacting the public and constitute matters of public concern.” Locke, 2023 WL 166309,

at *5. Employing the same reasoning, we hold the reverse is also true: when a

publication is made about an organization that staffs or provides medical care and

services, such communications are related to health and safety issues that impact the

public and constitute matters of public concern. Thus, the Article as a whole is about a

matter of public concern. Consequently, the revelation that Darrigan’s new company

secured a contract to staff an ER that had been previously staffed by APP also

constitutes a matter of public concern.

Likewise, we determine that the statements about Darrigan’s ownership of kava

bars and the related legal battle are also matters of public concern. According to

Darrigan’s own statements, he relied on his status as a physician to publicly endorse the

consumption of kava and kratom—mood-altering substances—using that status to give

credibility to the purported safety of ingesting the herbs.14 While perhaps not a medical

service in the traditional sense, Darrigan’s reliance on his status as a physician makes

this a matter of concern to the public—particularly if there are conflicting opinions

14
The record includes a printout of an online blog post called “Meet Dr. David
Darrigan of Kava Culture Denton.” The section includes a statement that “Dr. Darrigan
is being recognized for his outstanding contributions to the Texas kava bar scene.”
There is also a quote attributed to Darrigan that states, “As a physician, I did plenty of
research to make sure everything I would be offering would be safe. . . . I feel
completely comfortable offering these products and allowing a new way to be social,
with a plant buzz.”

18
about safe use. Additionally, the purported hyperlink to the ABEM letter of concern in

the Article provided a conflicting view about the safety of the same substances that

Darrigan was promoting and selling; thus, it also is a matter related to the health and

safety of the public. See Mem’l Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017

WL 3389645, at *6 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem.

op. on reh’g) (holding that communications criticizing physician’s competence were

related to health and safety issues and made in connection with matter of public

concern).

Accordingly, because Darrigan’s suit is based on statements in the Article that

are directly related to matters of public concern, we conclude—as the trial court did —

that Prospect satisfied its initial burden under the TCPA. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.001(7)(C).

2. Step Two

Because Prospect established that Darrigan’s suit was based on statements

directly related to a matter of public concern, the burden then shifted to Darrigan to

establish by clear and specific evidence a prima facie case for the essential elements of

each of his claims. See id. § 27.005(c). A “prima facie case” refers to evidence that is

legally sufficient to establish a given fact if it is not rebutted or contradicted. Lipsky, 460

S.W.3d at 590. “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). Bare or baseless opinions are no substitute

19
for clear and specific evidence, and “[o]pinions must be based on demonstrable facts

and a reasoned basis.” Lipsky, 460 S.W.3d at 592–93. “Clear” means “unambiguous,

sure, or free from doubt,” and “specific” means “explicit or relating to a particular

named thing.” Id. at 590 (internal quotation marks omitted). If a case fails on any

essential element, dismissal is warranted under the TCPA. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.005(c); see also NexPoint, 674 S.W.3d at 445.

Darrigan brought claims of defamation, defamation per se, tortious interference

with prospective relationships, business disparagement, negligence, and intentional

infliction of emotional distress, along with the related theories of liability: conspiracy,

ratification, and aiding and abetting, against Prospect. At the dismissal hearing, and on

appeal, Darrigan focused on his defamation claims—which make up the foundation for

his related claims and theories of liability. As a result, we first address Darrigan’s

defamation claims.

“The threshold question in a defamation case is whether the statement ‘is

reasonably capable of defamatory meaning.’” Neurodiagnostic Consultants, LLC v.

Villalobos, No. 03-18-00743-CV, 2019 WL 4892220, at *3 (Tex. App.—Austin Oct. 4,

2019, no pet.) (mem. op.) (quoting Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013)).

This question involves two steps: (1) whether the meaning alleged by the plaintiff is

reasonably capable of arising from the text, and, if it is, (2) whether that meaning is

reasonably capable of defaming the plaintiff. Dall. Morning News, Inc. v. Tatum, 554

S.W.3d 614, 625 (Tex. 2018). “If the statement is not reasonably capable of a

20
defamatory meaning, the statement is not defamatory as a matter of law and the claim

fails.” Villalobos, 2019 WL 4892220, at *3 (citing Hancock, 400 S.W.3d at 66).

Darrigan alleges both “defamation per se” and “defamation per quod” claims.

We note that the Texas Supreme Court has abandoned—other than for the purpose of

presuming general damages—the categories of defamation per se and per quod as

descriptors of whether a statement is defamatory. See Bookout, 2022 WL 17173526, at

*17 (citing Tatum, 554 S.W.3d at 625–26). Defamation that arises from a statement’s

text without reference to extrinsic evidence is now “textual defamation,” not

“defamation per se.” Tatum, 554 S.W.3d at 626. And defamation that does require

reference to extrinsic evidence is now “extrinsic defamation,” not “defamation per

quod.” Id.

a. Textual Defamation

The Supreme Court in Tatum identified three ways, in a textual-defamation case,

that a plaintiff may allege that a defamatory meaning arises. Id. at 628. First, the

defamatory meaning may arise explicitly. Id. (citing Bentley v. Bunton, 94 S.W.3d 561, 569

(Tex. 2002) (“[Y]’all are corrupt, y’all are the criminals, [and] y’all are the ones that

oughta be in jail.”)). Second, the defamatory meaning may arise implicitly as a result of

the gist of the entire article. Id. (citing D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d

429, 439 (Tex. 2017) (“[E]valuating the article ‘as a whole . . . ’ the article’s gist is

that . . . .” (citation omitted))). Third, the defamatory meaning may arise implicitly from

a distinct portion of the article rather than from the gist of the entire article. Id.

21
Darrigan makes two textual defamation arguments against Prospect: (1) that the

Article explicitly accuses him of criminal activity and (2) that the gist of the Article was

defamatory. We address each in turn.

i. Explicit

Darrigan claims the statement that his “controversial side gig running two cafés

that sell drinks spiked with the mood-altering herbs kratom and kava” alleges a criminal

act—and thus constitutes defamation per se.15 We disagree with this characterization

of the statement in the Article, and thus, with Darrigan’s conclusion.

Historically, defamation per se—now textual defamation—had to fall within one

of four categories: (1) imputation of a crime; (2) imputation of a loathsome disease;

(3) injury to a person’s office, business, profession, or calling; or (4) imputation of

sexual misconduct. Bookout, 2022 WL 17173526, at *14 (citing Gray v. HEB Food Store

No. 4, 941 S.W.2d 327, 329 (Tex. App.—Corpus Christi–Edinburg 1997, writ denied)).

Under Tatum, a statement that imputes the commission of a crime constitutes textual

defamation regardless of whether extrinsic evidence is required to show its defamatory

meaning. See Tatum, 554 S.W.3d at 625–26, 638. If a statement is defamatory per se,

damages are presumed. Bookout, 2022 WL 17173526, at *19 (noting that the Tatum court

did not abandon the distinction between defamation per se and defamation per quod

in the calculation of damages).

Darrigan uses “defamation per se” in his argument, which we characterize as
15

“textual defamation” under the guidelines set forth in Tatum.

22
But before one can accuse another of committing a crime, the crime must, in

fact, exist. Darrigan implicitly concedes this point by claiming that, by employing the

word “spiked” in describing the drinks he sells at his kava bars, the Article accused him

of the offense set forth in Section 22.09 of the Texas Penal Code, namely, tampering

with a consumer product. 16 We disagree. Section 22.09 does not use the word “spiked,”

and the Article makes no allegation that Darrigan “tampered” with the drinks being

sold at his kava bars.

Moreover, “spiked” and “tampered” are not necessarily synonymous terms.

Under the statute, “tamper” means “to alter or add foreign substance to a consumer

product to make it probable that the consumer product will cause serious bodily injury.”

Tex. Penal Code Ann. § 22.09(a)(2). Because “spiked” is not used in the statute, it is not

defined there, but traditionally, plain language—unless otherwise established—is given

its ordinary meaning. Cf. Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 386 (Tex. App.—

Fort Worth 2009, no pet.) (giving terms in an insurance policy their plain, ordinary

meanings). To determine a word’s ordinary meaning in a statute or other text, we are

permitted to use the dictionary definition. See, e.g., Fort Worth Transp. Auth. v. Rodriguez,

547 S.W.3d 830, 838 (Tex. 2018). “Spike[d]” can mean “to add an alcoholic beverage

To commit an offense under this section, the person must “knowingly or
16

intentionally tamper[] with a consumer product knowing that the consumer product
will be offered for sale to the public” or as a gift to another. Tex. Penal Code Ann.
§ 22.09(b). The offense may also be committed by threat to do the same, and depending
on the acts taken, the offense can be a first-, second-, or third-degree felony. Id.
§ 22.09(c), (d).

23
to” or “to add a foreign substance to.” Spike, Merriam-Webster’s Online Dictionary,

https://www.merriam-webster.com/dictionary/spike (last visited Aug. 12, 2025).

While we acknowledge that the parties disagree about the teas being directly brewed

from kava leaves rather than later “spiked” with the same, the statement itself does not

allege or reasonably imply the commission of a crime under the statute because a drink

can be spiked without intending to cause serious bodily injury. Compare id., with Tex.

Penal Code Ann. § 22.09(a)(2). There is simply no allegation of such criminal intent in

the Article.

And with regard to kratom, more specifically, although there was no criminal

offense associated with its sale in Texas at the time of the Article’s publication, the

Legislature had enacted a criminal offense therefor, see Act of Apr. 21, 2023, 88th Leg.,

R.S., ch. 2, § 2, 2023 Tex. Gen. Laws 2, 2–3, but only for the distribution or sale of

kratom products to minors, a crime the Article does not impute.17 See Tex. Health &

Safety Code Ann. §§ 444.001–.007. 18

17
We observe here that none of the parties brought this statute to our attention
despite its clear relevance to our defamation analysis.
18
We refer to the current numerical designation of this chapter—“Chapter 444.
Manufacture, Distribution, and Sale of Kratom Products”—in this opinion, as the
effective date for its redesignation to Chapter 445 is not in effect until September 1,
2025. See Act of May 14, 2025, 89th Leg., R.S., H.B. 1620, § 22.001 (to be codified as
Tex. Health & Safety Code Chapter 445).

24
Effective September 1, 2023, Chapter 444 of the Texas Health and Safety Code

imposed limitations on the manufacture, distribution, and sale of kratom products. 19

Section 444.002 prohibits kratom retailers20 such as Darrigan from selling a kratom

product that is not properly labeled “with product use directions necessary to ensure

safe use of the product by a consumer, including the recommended serving size for the

product.” Id. § 444.002. Section 444.003 prohibits the sale of a kratom product that

(1) is adulterated with a dangerous non-kratom substance affecting
the quality or strength of the product to a degree that renders the product
injurious to a consumer;
(2) is contaminated with a poisonous or otherwise deleterious non-
kratom substance, including any substance designated as a controlled
substance by Chapter 481 (Texas Controlled Substance Act);
(3) contains a level of 7-hyrdroxymitragynine in the alkaloid
fraction that is greater than two percent of the overall alkaloid
composition of the product; or
(4) contains any synthetic alkaloids, including synthetic 7-
hydroxymitragynine and synthetically derived compounds from a kratom
plant.
Id. § 444.003.

19
A “kratom product” is “a food, including an extract, capsule, or pill, containing
any form of kratom” defined as “any part of the leaf of the plant Mitragyna speciosa.”
Id. § 444.001(2), (4). And “food” includes drinks. Id. § 444.001(1) (incorporating the
definition of “food” set forth in Tex. Health & Safety Code Ann. § 431.002(16)(A)).
20
A “kratom retailer” is “a kratom processor who sells kratom products to
consumers or advertises, represents, or holds oneself out as a person who sells kratom
products to consumers.” Id. § 444.001(5). A “kratom processor” includes “a person
who . . . advertises, represents, or holds oneself out as a . . . seller of kratom products.”
Id. § 444.001(3)(B).

25
A violation of any of these regulations triggers a civil penalty only, even if it is a

repeat offense. Id. § 444.005. The only criminal offense imposed is for selling kratom

products to minors, a Class C misdemeanor. Id. § 444.004. So, even had these

regulations been in effect at the time of its publication and the Article had accused

Darrigan of spiking his drinks with kratom product containing a level of 7-

hydroxymitragynine in excess of the two percent threshold, he still would not have been

defamed as a criminal.

We conclude that Darrigan has not shown by clear and specific evidence that the

statement that he had a “controversial side gig running two cafés that sell drinks spiked

with the mood-altering herbs kratom and kava” amounts to the accusation of a crime;

and thus, he fails to establish the statement is textually defamatory.

ii. Gist

Darrigan’s argument as to the defamatory gist of the Article consists of a blanket

statement that Prospect “should have known the gist was false” and a general reference

to the previously filed affidavits and declarations that “all” claim the statements about

him in the Article were false.

The supreme court in Tatum determined that “gist” is “a publication or

broadcast’s main theme, central idea, thesis, or essence,” and “implication” is “the

inferential, illative, suggestive, or deductive meanings that may emerge from a

publication or broadcast’s discrete parts.” 554 S.W.3d at 629. When a plaintiff raises an

issue based on discrete implications, the proper appellate standard is “whether the

26
implication the plaintiff alleges is among the implications that the objectively reasonable

reader would draw.” Id. at 631. A party who seeks to recover based on a defamatory

implication—either a gist or a discrete implication—must also point to “additional,

affirmative evidence” within the publication itself that suggests the defendant “intends

or endorses the defamatory inference.” Id. at 635 (quoting White v. Fraternal Order of

Police, 909 F.2d 512, 520 (D.C. Cir. 1990) (emphasis omitted)).

Gist requires that we construe the publication as a whole. See id. at 628. The title

of the Article—“Shock Treatment in the Emergency Room: The Lehman-like collapse

of a(nother) private equity-owned ER operator has physicians calling louder than ever

for a strike”—is not particularly positive, but communicates that private-equity owned

ER operators have been unreliable. As we have noted, the Article extensively details the

fall of APP and the impact that fall has had on physicians and ERs. The Article then

shifts to discuss the founders of APP—discussing their backgrounds and faults. At this

point, the Article introduced Darrigan, calling him a “favored insider” and discussing

his “r[i]se through the ranks,” despite his “controversial” involvement with kava and

kratom. The Article noted the kava franchisor litigation Darrigan was involved with and

then stated that Darrigan had recently secured a former APP contract to staff CCMH.

The Article then quoted a source who stated that a “smattering” of “such insider deals”

has led to the suspicion that APP might be trying to discreetly award these contracts to

company “favorites.” The Article concluded by discussing a lawsuit eight Houston

doctors filed against APP and the opinion of one physician that APP has “committed

27
crimes.” These “crimes” are unspecified, but the lawsuit estimated that the eight

physicians had been underpaid by almost $14 million.

Darrigan’s entire argument on this point is that “[t]he gist of the [A]rticle is that

[he] is one of several bad guys (in business and his practice of medicine), like [APP’s

founders], who is secretly still running APP.” But this stretches the actual text of the

Article. Darrigan’s brief makes a general statement that each of the “fifteen declarations

and affidavits”—that were attached to his response to Prospect’s TCPA motion to

dismiss—swore that “every one of the published statements . . . were false and

defamatory as it related to [him].”

Ultimately, Darrigan makes no claim that the Article is substantially untrue in its

portrayal of APP, 21 only that the inclusion of the statements about him made him look

like “one of several bad guys.” We agree that the Article certainly includes negative

remarks about APP generally and lays no compliments on its founders. However, the

overall gist of the Article is that APP has failed the doctors it employed, causing chaos.

This alleged implication that Darrigan is “like” the founders is not one an objectively

reasonable reader would draw. See id. at 631. The founders are discussed in much more

colorful language. One being said to have engaged in transphobia, and the two others

to be the sort who would “shake your hand with one hand and steal your wallet with

In Darrigan’s original petition, he stated that the “overall gist of the article was
21

about the need for reform in healthcare finance laws.” He also claimed that the
paragraph that referred to him “seemed to be added to the rest of the [A]rticle as an
afterthought.”

28
the other.” There were no such comments made about Darrigan’s character. Darrigan

was not identified as a founder of APP or as one of the persons responsible for APP’s

collapse.

Although unflattering to be mentioned along with APP’s founders, the

statements impute none of the failings of APP discussed in the Article onto Darrigan.

See Means v. ABCABCO, Inc., 315 S.W.3d 209, 214 (Tex. App.—Austin 2010, no pet.)

(statements that are simply unflattering, abusive, annoying, irksome, embarrassing, or

that only hurt the plaintiff’s feelings are not actionable as defamation). The distinction

between Darrigan and APP and its founders is apparent in the Article, making the

alleged implication that Darrigan is “like” the founders or “like” APP an objectively

unreasonable conclusion.

Further, Darrigan fails to point to any affirmative evidence within the publication

to suggest that Prospect either intended to promote the defamatory meaning or

endorsed it. See Tatum, 554 S.W.3d at 635. The portrayal of Darrigan, while potentially

embarrassing and unflattering, does not show that Prospect intended to portray him as

one of the parties responsible for APP’s demise—and the resulting fallout. Thus, we

hold that Darrigan also failed to establish textual defamation by gist.

b. Extrinsic Defamation

Defamation per quod applies to all defamatory statements that are not

defamation per se. See Lipsky, 460 S.W.3d at 596. In a defamation case, “[a] TCPA

nonmovant must provide enough detail . . . to establish the facts of when, where, and

29
what was said, the defamatory nature of the statements, and how they damaged [him].”

Stickland, 2023 WL 8112889, at *19 (citing Lipsky, 460 S.W.3d at 591). Following Tatum,

defamation per quod—now extrinsic defamation—is defamation that requires

reference to extrinsic evidence. Tatum, 554 S.W.3d at 626. To prove an extrinsic-

defamation case, the plaintiff must assert this claim in his petition to present it at trial,

and the statement must require extrinsic evidence or explanatory circumstances to be

defamatory at all. Id. at 625, 626.

Defamation requires (1) the publication of a false statement of fact to a third

party, (2) that is defamatory of the plaintiff, (3) made with the requisite degree of fault.

Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). Defamation may occur

through slander—statements expressed orally—or through libel—statements

expressed in writing or other graphic form. Tatum, 554 S.W.3d at 623–24. Additionally

in any defamation case that is not textual defamation, or defamation per se, the plaintiff

must also prove damages. USA Lending, 669 S.W.3d at 202 (“A general averment of loss,

like any conclusory opinion, is not sufficient.”); Tatum, 554 S.W.3d at 623, 626 (ratifying

the continued distinction between defamation per se and defamation per quod as it

relates to the plaintiff’s burden to prove special damages); Lipsky, 460 S.W.3d at 593 (a

general reference to economic losses or lost profits—without more—cannot satisfy the

requirements under the TCPA); Downing v. Burns, 348 S.W.3d 415, 424 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (“To recover for defamation per quod, a plaintiff must

prove both the existence and amount of damages.”). The mere suspicion that a plaintiff

30
has suffered damages will not suffice as evidence of damages. See Villalobos, 2019 WL

4892220, at *5 (citing Suarez v. City of Texas City, 465 S.W.3d 623, 634 (Tex. 2015)).

Darrigan argues he suffered damages from “every one of the published

statements”22 about him—and the Article as a whole, which showed him in a “terrible

light.” To the extent that he is making an extrinsic defamation argument with this claim,

it fails because Darrigan’s evidence does not establish a prima facie case as to the

essential element of damages. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (the

nonmovant must establish, by clear and specific evidence, the essential elements for

each of his claims).

To establish damages, Darrigan relies on statements contained in the declarations

submitted with his response to Prospect’s TCPA motion to dismiss. Darrigan claims

that he has established the following damages as a result of the statements made in the

Article: (1) lost income of between $7,200 and $9,600 monthly, (2) a loss of

approximately $3,520,000 over five years as a shareholder at Vital Emergency Partners,

LLC (Vital), and (3) the loss of “substantial unliquidated damages” associated with the

loss of a contract with AB Staffing Solutions. However, the declarations are ultimately

22
We presume this refers to all of the alleged defamatory statements: (1) that
Darrigan was sued for stealing trade secrets, (2) that Darrigan was a “favored insider”
who “rose through the ranks,” (3) that Darrigan secured a former APP contract at
CCMH, (4) that Darrigan ran a “controversial side gig . . . sell[ing] drinks spiked with
the mood-altering herbs kratom and kava,” and (5) that Darrigan was promoting kava
and kratom as a healthy alternative to alcohol, “contrary to every medical specialist as
well as physician in the country.”

31
insufficient to show damages by clear and specific evidence and do not establish a prima

facie case as to damages. See Lipsky, 460 S.W.3d at 590 (internal quotation marks

omitted).

Three of the declarations specifically discuss the three damages that Darrigan

claims; however, the statements are either speculative and hypothetical or provide

incomplete information to determine specific damages.

First, Darrigan claims he suffered lost income of between $7,200 and $9,600

monthly. The declaration from Jay Woody states that Darrigan worked in his

independent emergency centers part time, but that he had concerns about Darrigan

continuing to work with him “due to the light [the Article] painted [Darrigan] in.”

According to Woody, Darrigan worked for his company “at will,” as a 1099-contract

employee, but his company was no longer considering Darrigan for ongoing hire.

Woody’s use of the present tense in his declaration—signed in December 2023, more

than four months after the Article was published at the end of July 2023—indicates that

Darrigan may have still been employed in December, but that Woody would not have

considered Darrigan for employment in the future. The timeframe of his

employment—and the alleged termination of employment—is unclear.

Further, Woody stated that Darrigan’s lost income “should be based on his usual

36–48 hours a month . . . at $200/hour, which equates to $7,200 to $9,600 per month.”

This statement is not clear enough to satisfy the clear and specific standard. The

statement is not “unambiguous, sure, or free from doubt.” See id. Instead, this

32
declaration presents only conclusory statements of Darrigan’s alleged lost wages, rather

than presenting evidence sufficient as a matter of law to establish what damages were

suffered—at the very least up until the time of the dismissal hearing. 23 See USA Lending,

669 S.W.3d at 202–03.

Second, Darrigan claims that he lost approximately $3,520,000 over five years as

a shareholder at Vital. David Copple, chief development officer of Emergency Care

Partners, was planning to work with Darrigan to grow Vital. The two wanted to present

Vital as an alternative to groups like APP. Copple’s declaration states that he and

Darrigan had identified fifteen hospitals to focus on, but that after the Article came out,

he and Darrigan decided to cancel the project. Copple estimated that those contracts

would have “conservatively” yielded approximately $300,000 in annual profit. Copple

also identified that Darrigan would have received an additional $88,000 (approximately)

per site, as a shareholder. Copple estimated that—for even half of the identified sites—

this would yield approximately $3,520,000 over a five-year contract.

23
There are too many unanswered questions that prevent us from calculating the
alleged loss: Has Darrigan stopped working for Woody? When did that happen? How
many months per year does, or did, Darrigan typically work for Woody—one, seven,
all twelve? Were the hours Darrigan worked per month closer to 36 or 48? Was
Darrigan scheduled for work after the Article came out—that is, did he anticipate a
particular income the months after he was terminated? But cf. USA Lending, 669 S.W.3d
at 201–03 (where evidence—expert testimony and financial records showing amount
of expenses, fees, and other out-of-pocket costs incurred were attached to affidavit
purporting damages—presented to trial court sufficiently established there was some
specific, demonstrable injury suffered).

33
But the figures Copple presents are all hypothetical. Copple and Darrigan

canceled the entire project before even presenting it to the fifteen identified hospitals.

This does not amount to sufficient evidence to establish damages under the TCPA. See

USA Lending, 669 S.W.3d at 202; Villalobos, 2019 WL 4892220, at *5 (holding that there

must be more than a mere suspicion that a plaintiff has suffered damages).

We note that Copple’s declaration states that he and Darrigan were “in

discussions” with a Texas hospital and that the hospital stopped responding after the

Article came out. But Copple then avers that he “[could] only assume the decision was

made based on the bad press.” This assumption, without any evidence of its accuracy

or any evidence of the cost of that loss, is also insufficient to support the essential

element of damages. See O’Hern v. Mughrabi, 579 S.W.3d 594, 600 (Tex. App.—Houston

[14th Dist.] 2019, no pet.) (holding that speculative or conjectural damages are not

recoverable (citing Reardon v. LightPath Techs., Inc., 183 S.W.3d 429, 442 (Tex. App.—

Houston [14th Dist.] 2005, pet. denied))).

Third, Darrigan claims that he suffered “substantial unliquidated damages”

associated with the loss of a contract with AB Staffing Solutions. Shelley Fuller’s

declaration states that after seeing the Article, the company she worked for, AB Staffing

Solutions, “made the decision to discontinue any services moving forward that were

connected to [Darrigan],” including Darrigan’s new company, Elite. Fuller’s declaration

states that AB Staffing Solutions was contracted with APP when the Article came out

in July 2023. The declaration does not state that AB Staffing Solutions was in

34
conversation to contract with Elite, or with Darrigan individually, only that it would not

choose to do so in the future. This statement, like Copple’s, is nothing more than mere

suspicion that Darrigan may one day have suffered a loss. Thus, this evidence also fails

to serve as clear and specific evidence of damages to support Darrigan’s prima facie

burden.

Because the information Darrigan relies on in the declarations is insufficient to

establish a prima facie case for damages and Darrigan similarly failed in his textual

defamation claims, we overrule Darrigan’s fourth and fifth issues as they relate to

Prospect.24 See Bookout, 2022 WL 17173526, at *13 (“Statements that are conclusory or

evidence that is speculative is not sufficient to carry the nonmovant’s burden.”).

24
The trial court order granting the TCPA motion to dismiss also dismissed the
secondary claims pled by Darrigan. Darrigan argues in his appellate brief that the trial
court erred in dismissing his remaining claims and theories of liability: business
disparagement, conspiracy, ratification, and aiding and abetting.

Both business disparagement and civil conspiracy require a showing of damages.
See Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 170 (Tex. 2003) (business
disparagement requires a finding of damages); McShirley, 2024 WL 976512, at *12
(holding that civil conspiracy requires that a plaintiff suffered injury because of the
alleged wrongful act and that civil conspiracy is a derivative tort that survives or dies
alongside the underlying tort alleged—thus, if the trial court did not err in dismissing
the underlying tort, it did not err in dismissing the conspiracy claim). Because these
claims are derivative of Darrigan’s defamation claims, and we have held that Darrigan
failed to establish a prima facie case as to damages, we likewise overrule the fourth and
fifth issues as they relate to business disparagement and conspiracy.

Darrigan also made a blanket statement on appeal that the trial court erred in
dismissing his ratification and aiding and abetting theories of liability when it granted
the TCPA motion to dismiss for defamation; but curiously, Darrigan’s only support of

35
D. Hansen

Darrigan’s third issue and the remainder of his fourth and fifth issues relate to

Hansen. The third issue claims that the trial court erred when it allowed Hansen to

“join” Prospect’s TCPA motion to dismiss. The fourth and fifth issues generally

challenge the trial court’s grant of the TCPA motions to dismiss, claiming that there

was not sufficient evidence to do so.

1. Motion for Joinder

Hansen filed a “Joinder in Prospect Defendants’ Motion to Dismiss Claims

Pursuant to the Texas Citizens Participation Act” (Joinder), adopting and incorporating

this statement is that he “met his burden” as to his defamation claims. There is no
caselaw to support this argument, nor is there any reference to the record where any
prima facie case was established as to either of those theories. See Tex. R. App. P. 38.1(i)
(briefing waiver); see also NexPoint, 674 S.W.3d at 446–47 (“Failure to provide citation
to the record or citations for legal references constitutes inadequate briefing and
waiver.”). Considering that both theories of liability are based on the underlying claims
of defamation pleaded by Darrigan, we also uphold the trial court’s dismissal of these
derivative claims. See Provencio v. Paradigm Media, Inc., 44 S.W.3d 677, 683 (Tex. App.—
El Paso 2001, no pet.) (“The same protections which the First Amendment affords
defendants from libel claims also protects them from non-libel claims that are based on
the same defamatory publication.”).

We note that Darrigan does not discuss the dismissal of the tortious interference
or negligence claims raised in his original petition. See Gunderson v. Nat’l Indoor RV Ctrs.,
LLC, No. 02-24-00025-CV, 2024 WL 3365233, at *2 (Tex. App.—Fort Worth July 11,
2024, pet. denied) (mem. op.) (holding that it is not the job of the appellate court to
identify possible trial court error—that burden is on the party appealing the trial court’s
judgment); see also Tex. R. App. P. 38.1(i). Additionally, Darrigan acknowledges in his
appellate brief that he waived the intentional infliction of emotional distress claims at
trial. Thus, we do not address the trial court’s dismissal of the tortious interference,
negligence, or intentional infliction of emotional distress claims and theories, as they
have not been raised on appeal.

36
“by reference the Prospect Defendants’ Motion to Dismiss Pursuant to Chapter 27 of

the Texas Civil Practice & Remedies Code.” Darrigan filed no objections to Hansen’s

Joinder motion and did not object during the dismissal hearing. Instead, Darrigan

responded to both Prospect’s and Hansen’s TCPA motions to dismiss. In general, a

prequisite to presenting a complaint on appeal is a timely complaint to the trial court

on the record that the trial court either ruled on or refused to rule on. See Tex. R. App.

P. 33.1(a). As a result of his failure to object to Hansen’s Joinder of Prospect’s TCPA

motion to dismiss, this complaint has not been preserved for appeal. 25 We overrule

Darrigan’s third issue.

2. TCPA Motion to Dismiss

Hansen’s appellate brief—by way of adopting Prospect’s argument26—contends

that Darrigan’s claims about the defamatory nature of the letter he drafted to the ABEM

fall within the purview of the TCPA because it addressed a matter of public concern.

Darrigan sued Hansen for slander, claiming that Hansen made accusations about

Darrigan to Tkacik. Specifically, Darrigan claims that Hansen told Tkacik that Darrigan

25
We note that in his reply brief, Darrigan claims that Hansen’s Joinder motion
was untimely filed in the trial court. Similar to his challenge that the Joinder motion was
insufficient, this argument was waived because Darrigan failed to raise it with the trial
court. See Tex. R. App. P. 33.1(a), 38.3; see also Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd.,
409 S.W.3d 790, 803 (Tex. App.—Dallas 2013, no pet.) (“[A]n issue raised for the first
time in a reply brief is ordinarily waived and may not be considered by this [c]ourt.”).
26
The Texas Rules of Appellate Procedure allow any party to “join in or adopt
by reference all or any part of a brief, petition, response, motion, or other document
filed in an appellate court by another party in the same case.” Tex. R. App. P. 9.7.

37
was spiking his client’s drinks with a harmful substance and that he was a rising member

of APP. Darrigan claimed in his original petition that these statements made him

“appear unethical, immoral, and a [sic] criminal.”

According to Tkacik’s affidavit, “[m]ultiple sources,” including Hansen, shared

with her that there was a rumor that Darrigan had launched an independent staffing

company and had acquired—or likely would acquire—a contract with CCMH, an ER

previously staffed by APP. Hansen’s affidavit also stated that he spoke to Tkacik about

APP and knowledge of Darrigan. Hansen knew Darrigan as a regional medical director

for APP who made attempts to convince physicians to sign on with APP during APP’s

purchase of Darrigan’s prior company. Hansen stated that he later became aware of

Darrigan’s promotion of kava and kratom, and because he had researched the

potentially harmful effects, he told Tkacik that he “[did] not believe it [was] responsible

for any board-certified physician to promote” either substance. Hansen also admitted

that he drafted the letter to ABEM in February 2023 with these concerns. Hansen then

shared this letter with Tkacik because it included his own research into kava and kratom.

According to Hansen, he received “no confirmation the letter was obtained nor

reviewed by [ABEM].”

a. Step One

As with Prospect, we first must determine the TCPA’s applicability to the claims

against Hansen. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Hansen will have

met his initial burden if he can show that Darrigan’s suit is based on or in response to

38
the exercise of free speech or an act described in Section 27.010(b). The only argument

presented in Darrigan’s appellate brief against Hansen was that Hansen’s Joinder

motion did not adequately show that the TCPA applied.

It is illogical to determine that the TCPA would not apply to Hansen’s statements

in the ABEM letter about Darrigan’s involvement with kava and kratom—or any

alleged verbal statements about Darrigan’s connection to APP—when we have

determined that both are matters of public concern as to Prospect. As a result, because

Darrigan’s suit is based on statements directly related to matters of public concern

under the TCPA, we conclude—as the trial court did—that Hansen satisfied his initial

burden under the TCPA. See id. § 27.001(7)(C).

b. Step Two

Darrigan’s original petition asserted a claim of slander27 against Hansen, along

with claims of tortious interference with prospective relationships, negligence, and

intentional infliction of emotional distress, as well as the related theories of liability of

conspiracy, ratification, and aiding and abetting. On appeal, and during the TCPA

motion to dismiss hearing, Darrigan focused on defamation related to the statements

In the original petition, Darrigan alleges that Hansen falsely told Tkacik that
27

Darrigan was spiking his clients’ drinks with harmful substances—accusing him of a
crime. He also claims that Hansen falsely accused him of being a “rising member” of
APP. And although he mentions Hansen’s role in authoring the Word document in the
“Facts” section, Darrigan makes no specific defamation claim against Hansen as to the
Word document in his original petition.

39
in the Article. We have resolved Darrigan’s “non-defamation” causes of action for

Prospect above and see no reason for a different result for Hansen.

As for his defamation claims, we first note that Darrigan has provided no caselaw

to support that a source for a story should be held liable for a claim of defamation when

the claim against the publisher or author was not proven. Even more so, Darrigan does

not discuss his prima facie case against Hansen in his appellate brief at all—he claims

only that Hansen did not meet the initial burden under step one of the TCPA—which

we have held otherwise.

To the extent that Darrigan’s limited statement in his appellate brief—that the

hyperlinked Word document defamed him explicitly and by implication—was meant to

establish his prima facie case of textual defamation, we disagree. Under step two,

Darrigan had the burden under the TCPA to show—with clear and specific evidence—

that he could establish a prima facie case for the allegedly defamatory statements in the

Word document. He has not done so. See id. § 27.005(c).

As we have stated, a claim for defamation requires (1) the publication of a false

statement of fact to a third party, (2) that is defamatory of the plaintiff, (3) made with

the requisite degree of fault, that, in some cases, (4) causes damages. Rincones, 520

S.W.3d at 579. If a statement is not verifiable as false, it cannot form a defamation claim.

Tatum, 554 S.W.3d at 639. If a statement cannot be verified or cannot be understood to

convey a verifiable fact, it is an opinion. Id. “Whether a statement is an opinion is a

question of law.” Id. (citing Bentley, 94 S.W.3d at 580). “[T]he sincerity of one’s belief

40
does not transform an opinion into a fact.” Lilith Fund for Reprod. Equity v. Dickson, 662

S.W.3d 355, 369 (Tex. 2023).

Aside from Darrigan’s blatant fabrication that the Word document called for the

ABEM to “strip” Darrigan of his medical license, he identifies only one statement as

defamatory: “We feel the following products/drinks he’s serving to the public disguised

as a healthy alternative (promoted by him as such) to alcohol are both contrary to every

medical specialist as well as physician in the country.” We first hold that this is an

opinion. A reasonable reader would not believe that this statement meant the writer

spoke with “every” specialist and physician in the country—particularly without any

citation to the same, when most other assertions were at least supported by some sort

of purported source. See id. (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157–58

(Tex. 2004) (stressing that the test is not whether some readers may be misled, but

whether the hypothetical reasonable reader could be misled)). Thus, without a statement

of fact, the prima facie case for defamation fails.

But even if the statement is not an opinion and purports to convey a statement

of fact, Darrigan provided no evidence to demonstrate that this statement is false. The

Word document includes multiple links to various statements from Darrigan

supporting the consumption of kava and kratom juxtaposed with various websites and

statements that the consumption of either one can be dangerous. And we have already

noted the contemporaneous enactment of Chapter 444 regulating the content and

strength of kratom products to avoid injuries to consumers.

41
Darrigan does not contest the accuracy of the contrary sources cited by Hansen’s

letter, nor does he even acknowledge the Legislature’s contemporaneous concerns

about the safe consumption of kratom products. Instead, he contends that he simply

promoted the sale of “low-dose, safe versions of the drinks he made from those leaves”

and points to his own declaration as evidence of this claim. But his declaration does not

provide evidence to establish that Hansen’s statement or sources are false.

Darrigan points us to a paragraph in his declaration that explains that the drinks

brewed at kava bars are “brewed from the leaves of kava and/or kratom,” and

customers order the drinks knowing this. The next paragraph states that the teas,

traditionally made in Indonesia, are not the same as the “designer kratom-related drugs

listed by the Defendant.” Neither statement shows by clear and specific evidence that

the statement in the Word document is false. See Lipsky, 460 S.W.3d at 592–93 (“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.”).

Additionally, as we have held above for Prospect—Darrigan failed to establish

the element of damages. See discussion supra C.2.b. The declarations do not mention

the Word document linked to the Article, and none of the declarations adequately

establish Darrigan’s prima facie case of defamation as to damages. If a case fails on any

essential element, dismissal is warranted under the TCPA. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.005(c); see also NexPoint, 674 S.W.3d at 445.

42
Because Darrigan did not present clear and specific evidence of his prima facie

case as to the statement in the Word document, we also overrule the fourth and fifth

issues as they relate to the claims against Hansen.28

IV. Attorney’s Fees and Sanctions Under the TCPA

Darrigan’s sixth and seventh issues challenge the award of attorney’s fees to

Prospect and the award of sanctions to both Prospect and Hansen.

The TCPA provides that if a legal action is dismissed under Chapter 27, the trial

court “shall award to the moving party court costs and reasonable attorney’s fees

incurred in defending against the legal action.” Tex. Civ. Prac. & Rem. Code Ann.

§ 27.009(a)(1). Further, the trial court “may award to the moving party sanctions against

the party who brought the legal action” as a means of deterrence for the party who

brought the legal action from bringing a similar action. Id. § 27.009(a)(2). Prospect was

28
Darrigan’s original petition made the same derivative claims against Hansen
that it made against Prospect. Because we have determined that all Darrigan’s
defamation claims fail, we incorporate our analysis of secondary claims and theories of
liability as applied to Prospect to Hansen and likewise conclude that the trial court did
not err in dismissing all the claims and theories of liability pleaded in Darrigan’s original
petition. See discussion supra footnote 24.

We further note that Darrigan alleges in his appellate brief that Hansen provided
various statements to Prospect (1) that Darrigan was spiking drinks, (2) that Darrigan
was an APP insider, (3) that Darrigan secured a contract from APP months before its
collapse, and (4) that Darrigan was an APP favorite. Darrigan offers no citations to the
record to support these allegations. See Tex. R. App. P. 38.1(i); Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(c); see also Stickland, 2023 WL 8112889, at *19 (if the nonmovant
fails to meet his burden, the movant is entitled to dismissal). To the extent Darrigan
intended to maintain these claims, we overrule the issues as related to these alleged
statements as well.

43
awarded $118,280 in attorney’s fees and $30,000 in sanctions. Hansen was awarded

$21,918.50 in attorney’s fees and $10,000 in sanctions.

A. Attorney’s Fees

Darrigan complains that there was insufficient evidence to support Prospect’s

attorney’s fees award. Specifically, he claims that Prospect’s attorney’s fees affidavit fails

to contain any statement that the rates billed were reasonable and that the subject matter

of the work completed was redacted, thus preventing the calculation of a reasonable

award. We note that Darrigan makes no argument about the award of attorney’s fees to

Hansen.

1. Standard of Review and Applicable Law

If a trial court dismisses a suit under the TCPA, it “shall award to the moving

party court costs and reasonable attorney’s fees incurred.” Id. § 27.009(a)(1). A

reasonable fee is “one that is not excessive or extreme, but rather moderate or fair.”

Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (quoting Garcia v. Gomez, 319

S.W.3d 638, 642 (Tex. 2010)). What is “reasonable” rests in the sound discretion of the

trial court. See id. “A trial court abuses its discretion when its award is arbitrary,

unreasonable, and without reference to guiding principles.” Davis v. Crawford, 700

S.W.3d 438, 452 (Tex. App.—Eastland 2024, no pet.). But no abuse of discretion occurs

when the trial court decides based on conflicting evidence, so long as some substantive

and probative evidence supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d

92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on

44
reh’g). An appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same circumstances. E.I.

du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low v.

Henry, 221 S.W.3d 609, 620 (Tex. 2007).

We are guided by the principles set forth in the Texas Supreme Court’s opinion

in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). See

generally Mignogna v. Funimation Prods., LLC, No. 02-19-00394-CV, 2022 WL 3486234, at

*16–28 (Tex. App.—Fort Worth Aug. 18, 2022, pet. denied) (mem. op.) (relying on

Rohrmoos in reviewing trial court’s determination of reasonable attorney’s fees in TCPA

case). To determine a reasonable amount of attorney’s fees under Rohrmoos, the

factfinder must start by determining the reasonable hours worked multiplied by a

reasonable hourly rate (the “lodestar analysis”); the fee claimant bears the burden of

providing sufficient evidence of both. 578 S.W.3d at 498; Mignogna, 2022 WL 3486234,

at *17; see El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012) (explaining that the

trial court calculates the base lodestar amount). Sufficient evidence must address, at a

minimum, (1) the particular services performed; (2) who performed those services;

(3) approximately when the services were performed; (4) the reasonable amount of time

required to perform the services; and (5) the reasonable hourly rate for each person

performing the services. Rohrmoos, 578 S.W.3d at 498, 502.

“[T]here is a presumption that the base lodestar calculation, when supported by

sufficient evidence, reflects the reasonable and necessary attorney’s fees that can be

45
shifted to the non-prevailing party.” Id. at 499. Most Arthur Andersen 29 factors—“the

time and labor required”; “the novelty and difficulty of the questions involved”; “the

skill required to perform the legal service properly”; “the fee customarily charged in the

locality for similar legal services”; “the amount involved”; “the experience, reputation,

and ability of the lawyer or lawyers performing the services”; “whether the fee is fixed

or contingent on results obtained”; “the uncertainty of collection before the legal

services have been rendered”; and “results obtained”—are already incorporated into

the base lodestar. Id. at 500. “[A] fee opponent [who] seeks a reduction [from the base

lodestar amount], . . . bears the burden of providing specific evidence to overcome the

presumptive reasonableness of the base lodestar figure.” Id. at 501.

Even if the attorney’s fees request is not contested, the trial court is not obligated

to award the requested amount, but the award must bear a reasonable relationship to

the fees in controversy. Iola Barker v. Hurst, 632 S.W.3d 175, 193 (Tex. App.—Houston

[1st Dist.] 2021, no pet.). Thus, when determining an appropriate fee award, the trial

court is entitled to examine the entire record and to view the matter in light of the

amount in controversy, the nature of the case, and his or her personal experience as a

lawyer or judge. Mignogna, 2022 WL 3486234, at *17 (citing Iola Barker, 632 S.W.3d at

193–94).

29
See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (op.
on reh’g).

46
2. Discussion

The trial court awarded $118,280 in attorney’s fees to Prospect. We have already

held that the trial court did not err in granting Prospect’s motion to dismiss under the

TCPA, the grant of which mandates an award of attorney’s fees. See Tex. Civ. Prac. &

Rem. Code Ann. § 27.009(a)(1). Thus, the only remaining question is whether the trial

court’s award of $118,280 in attorney’s fees to Prospect was reasonable. See id.

In support of its claim for attorney’s fees, Prospect relied on the affidavit of its

lead attorney, Catherine L. Robb. Robb was assisted by a partner, Laura Prather, and

an associate, Reid Pillifant, at the same law firm. The affidavit included billing rates for

each of the three attorneys,30 as well as the paralegal31 who provided support—with the

rates ranging from $210/hour to $495/hour. According to Robb’s affidavit,

performance of specific tasks was tracked in detailed billing statements and showed a

total of 324.30 hours worked through December 31, 2023. Calculation of the hourly

rates for each professional to the individual amounts of time for each specified task

reflected attorney’s fees of $118,280 for professional services connected to the

The attorney time was billed at the following rates: $495/hour (Prather),
30

$400/hour (Robb), and $320/hour (Pillifant). According to Robb, these were
discounted rates due to the relationship the law firm has with the insurer for Prospect.
The standard rates of the attorneys who worked on this matter were $875/hour,
$725/hour, and $650/hour—respectively.
31
The paralegal time—for a practitioner with more than 10 years of experience
as an attorney and paralegal—was billed at $210/hour. Additionally, Robb indicated
that the paralegal’s standard rate was $420/hour.

47
representation. Additionally, Robb included a $4,000 fee, incurred for the preparation

of the attorney’s fees affidavit and resolution of the attorney’s fees matter, as well as

court costs of $21.28. The total amount requested for the attorney’s fees award was

$122,301.28.

The affidavit included a statement that “[t]he rates charged in this matter are

comparable to or lower than rates charged by legal professionals with similar levels of

experience at similar law firms throughout Texas, including Denton County,” for

representation of specialized First Amendment work. Billing statements were not

attached, but Robb stated the invoices could be made available to the trial court upon

request, after redaction.32 The affidavit also included statements addressing each of the

Arthur Andersen factors.

Darrigan objected to Robb’s affidavit because it did not include invoices or proof

of how the hours and attorney’s fees were accrued and calculated. Darrigan also

challenged the reasonableness of the rates in Denton County for the same reason: that

the calculation could not be evaluated without an invoice or statement. Darrigan’s

attorney created an affidavit stating that the requested fees were not reasonable or

necessary and there was “no way for [him] or [his] client to know whether any of the

32
These invoices were later provided to the trial court—with a supplemental
affidavit —detailing the services performed, the length of time, the dates performed,
and by whom.

48
charges [were] duplicative, erroneous, unnecessary, excessive, or just inadequately

documented” without an invoice.

Following the objections and motion to strike, Robb filed a supplemental

affidavit and copies of the invoices for the work completed.33 Darrigan objected to the

redacted portions of the invoices, claiming that the redactions removed the “subject

matter of the work.” There is no record of a hearing, but the trial court then granted

Prospect’s—and Robb’s—request for attorney’s fees and costs, awarding $118,280 in

reasonable attorney’s fees. The trial court denied recovery for the $4,000 fee to prepare

the attorney’s fees affidavit and the additional court costs identified and implicitly

denied the request for contingent appellate attorney’s fees.

On appeal, Darrigan has not alleged that Robb’s affidavit itself is defective or

insufficient. Instead, he makes only three challenges to the $118,280 attorney’s fee

award: (1) that the affidavit failed to contain a statement that the rates billed were

reasonable in Denton County; (2) that the billing entries had the subject matter of the

work completed redacted throughout each invoice; and (3) that the award was not

supported by the evidence. All three arguments fail.

33
Robb’s supplemental filing was accepted by the trial court and resolved
Darrigan’s complaint that Robb’s first affidavit lacked proper documentation to
support the work completed and the length of time tasks were worked on and by whom.
That record was properly before the trial court, and we likewise considered the evidence
on appeal.

49
First, Robb’s initial affidavit does include a statement that the rates were

reasonable in Denton County. 34 Darrigan provided no evidence to support that such a

statement by Robb would be demonstrably false. At most, this could be construed as a

challenge to Robb’s statement that the fees are reasonable in Denton County—a

challenge the trial court was entitled to resolve in Prospect’s favor. See Unifund, 299

S.W.3d at 97.

Second, although there are redacted portions of the invoices submitted, the tasks

are identifiable. For example, one description reads “Review and analyze discovery

requests served over weekend and review and update deadlines and communicate with

clients [redacted].” Another description reads, “Review multiple correspondence from

reporter and sources concerning [redacted].” Other descriptions have no redactions at

all: “Continue reviewing and considering Affidavits for inclusion in Anti-SLAPP

Motion (1.6)” and “Review and revise Motion to Strike evidence in D. Darrigan’s

Response to Motion to Dismiss.” We conclude that the invoice descriptions are

discernable even with redactions. Further, we note that the trial court could have filled

in the gaps left by the redactions with its knowledge of the work necessary to file the

TCPA motions. See Isomeric Indus., Inc. v. Triple Crown Res., LLC, No. 01-22-00768-CV,

2023 WL 6884172, at *6 (Tex. App.—Houston [1st Dist.] Oct. 19, 2023, no pet.) (mem.

34
“The rates charged in this matter are comparable to or lower than rates charged
by legal professionals with similar levels of experience at similar law firms throughout
Texas, including Denton County, for highly specialized First Amendment work such as
the work performed for Prospect Defendants in this case.”

50
op.) (holding that a trial court judge may draw on his or her own experience to

determine whether tasks performed and fees incurred are reasonable). In any event,

Darrigan did not complain about specific entries in the trial court and has not

complained about any that are undeterminable on appeal.

Finally, Darrigan makes the blanket statement that “the trial court’s ruling is not

supported by any evidence.” We disagree. Robb’s supplemental affidavit attaches more

than 25 pages of invoices detailing the work, time spent, when, and by whom

concerning the representation of Prospect during this case. Darrigan identifies no

entries that detail tasks not performed in the course of this representation, or any

duplicate entries of work performed.

Having resolved Darrigan’s complaints, and considering the affidavits and

invoices provided by Robb and Prospect, we conclude that the trial court did not abuse

its discretion in awarding $118,280 in attorney’s fees to Prospect.

B. Sanctions

1. Standard of Review and Applicable Law

“Sanctions are incorporated into the TCPA’s framework because dismissal alone

might not suffice to deter a SLAPP suit.” Montoya Frazier v. Maxwell, No. 02-23-00103-

CV, 2025 WL 494699, at *11 (Tex. App.—Fort Worth Feb. 13, 2025, pet. filed) (en

banc). An award of sanctions in a TCPA case is also reviewed for an abuse of discretion.

Maynard v. Bankston, No. 04-24-00074-CV, 2025 WL 1452565, at *7 (Tex. App.—San

Antonio May 21, 2025, no pet. h.) (citing ADB Int., LLC v. Wallace, 606 S.W.3d 413,

51
443 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)). In determining whether the

trial court abused its discretion, we consider whether the facts present an appropriate

case for the trial court’s action and whether the trial judge acted arbitrarily,

unreasonably, or without reference to guiding rules or principles. See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We may not conclude

that the trial court abused its discretion merely because we might have decided a factual

question differently from the trial court. Id. at 242. The award of sanctions is not

mandatory—as the award of attorney’s fees is—and is meant to deter a similar legal

action after it has been dismissed under the TCPA. See Tex. Civ. Prac. & Rem. Code

Ann. § 27.009(a)(2).

“[T]he statute does not specify a particular formula, amount, or guideline for

determining the sanctions amount other than to say that the amount is to be sufficient

to deter the party who brought the legal action from bringing similar actions.” Tatum v.

Hersh, 559 S.W.3d 581, 587 (Tex. App.—Dallas 2018, no pet.) (op. on remand). The

award must be large enough to serve the purpose identified in the statute, but the mere

fact that an award is large does not render it excessive. Baukus v. Engle, Nos. 14-22-

00705-CV, 14-22-00951-CV, 2025 WL 924570, at *16 (Tex. App.—Houston [14th

Dist.] Mar. 27, 2025, no pet.) (mem. op.). “Factors relevant in considering whether to

impose sanctions include, among others, the amount of attorney’s fees and costs

incurred, the plaintiff’s history of bringing similar actions, and any aggravating

misconduct.” Cobb Dev. v. McCabe, No. 03-21-00524-CV, 2023 WL 4003513, at *13

52
(Tex. App.—Austin June 15, 2023, pet. denied) (mem. op.) (internal citations omitted).

The trial court is also permitted to consider the history of the litigation itself. 1st &

Trinity Super Majority, LLC v. Milligan, 657 S.W.3d 349, 380 (Tex. App.—El Paso 2022,

no pet.). The TCPA “does not expressly require the trial court to explain how it reached

its determination.” Kinney v. BCG Att’y Search, Inc., No. 03-12-00579-CV, 2014 WL

1432012, at *11 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op. on reh’g);

see Mishkoff v. Garrett, No. 05-22-01063-CV, 2024 WL 770142, at *6 (Tex. App.—Dallas

Feb. 26, 2024, pet. denied) (mem. op.) (explaining that trial-court findings are required

by Section 27.007 when sanctions are awarded under Section 27.009(b) but not when

awarded under Section 27.009(a)(2)).

2. Discussion

Prospect sought sanctions in the affidavit for attorney’s fees, “due to [Darrigan’s]

clear inclination to use litigation to silence his critics, and his litigious nature, in general.”

Hansen’s affidavits for attorney’s fees did not include a request for sanctions. Darrigan

objected to an award of sanctions—to either Prospect or Hansen—maintaining that

the trial court should not have dismissed his claims at all.

The trial court awarded a total of $40,000 in sanctions—$30,000 to Prospect and

$10,000 to Hansen. On appeal, Darrigan challenges the total sanctions award, claiming

it was an abuse of discretion because there is insufficient evidence to support it. That is

the entirety of Darrigan’s objection to the sanctions award.

53
Although Darrigan fails to cite authority to support his argument, in the final

award for attorney’s fees and sanctions, the trial court cited the applicable standard for

awarding sanctions to Prospect and to Hansen pursuant to subsection (a)(2). 35 See Tex.

Civ. Prac. & Rem. Code Ann. § 27.009(a)(2) (stating the trial court “may award

sanctions . . . as the [trial] court determines sufficient to deter the party who brought

the legal action from bringing similar actions”); see also Rich v. Range Res. Corp., 535

S.W.3d 610, 613 (Tex. App.—Fort Worth 2017, pet. denied). The award of sanctions

under the TCPA is at the discretion of the trial court. See Landry’s, Inc. v. Animal Legal

Defense Fund, 631 S.W.3d 40, 46 (Tex. 2021).

The trial court is permitted to consider the history of the litigation itself, Milligan,

657 S.W.3d at 380, and does not need to explain how it reached its determination,

Kinney, 2014 WL 1432012, at *11. Considering that (1) Darrigan brought forth nine

claims and theories of liability, but only put forth argument as to two (both for

defamation—libel and slander); (2) Darrigan complains about statements in the Article

that he did not originally ask Prospect to change; and (3) Darrigan exaggerated the

statements made “against him” when arguing before the trial court, we cannot conclude

that the trial court abused its discretion by awarding $40,000 in sanctions to Prospect

and to Hansen for the purpose of discouraging future similar suits. See Cobb Dev., 2023

35
In the “Second Corrected Order Granting Attorney’s Fees and Costs,” the trial
court ordered that sanctions be recovered “based on the evidence admitted and
considered in this case” and found “the amount that is sufficient and necessary to deter
[Darrigan] from bringing similar actions.”

54
WL 4003513, at *13 (upholding $60,000 sanctions award where the trial court

considered the history of the litigation and the sanctions award was less than half of the

attorney’s fees award).

Because we have resolved Darrigan’s complaints as to attorney’s fees and

sanctions, we overrule issues six and seven.

V. Conclusion

Having overruled each of Darrigan’s issues on appeal, we affirm the orders of

the trial court.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: August 21, 2025

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