## Facts

- Steven and Shyla Lipsky owned rural property near Weatherford, Texas with a water well; Range Resources drilled nearby gas wells in 2009.
- After moving into their home, the Lipskys experienced well problems described as “gas locking,” and consultant Alisa Rich tested the well and detected methane and other gases.
- Steven Lipsky recorded and circulated a video of ignited gas escaping from a hose connected to a vent on the well, and he communicated with the EPA, media, and state regulators about alleged contamination tied to Range’s drilling.
- The Texas Railroad Commission investigated and concluded Range’s operations were not the source of the contamination.
- The Lipskys sued Range for negligence-related claims; Range counterclaimed and sued Rich for defamation, business disparagement, and civil conspiracy based on statements attributing contamination and safety risks to Range.
- The trial court dismissed the Lipskys’ claims and denied TCPA dismissal as to Range’s claims against Steven Lipsky and Rich (while dismissing some claims against Shyla).
- The court of appeals granted partial mandamus relief, requiring dismissal of Range’s claims against Shyla and Rich under the TCPA but allowing part of Range’s case against Steven Lipsky to proceed.
- The Texas Supreme Court addressed the TCPA’s “clear and specific evidence” requirement and whether Range met it.

## Issues

1. Whether the TCPA’s requirement of “clear and specific evidence” for a prima facie case permits reliance on relevant circumstantial evidence.
2. Whether Range produced clear and specific evidence of each essential element of defamation, business disparagement, and conspiracy—particularly falsity and damages—to defeat TCPA dismissal.

## Decision

- The court held that “clear and specific evidence” under the TCPA includes relevant circumstantial evidence.
- The court denied mandamus relief to both sides and generally left the court of appeals’ disposition in place.
- As a result, the TCPA dismissals of Range’s claims against Shyla Lipsky and Alisa Rich remained effective.
- Range’s claims against Steven Lipsky could proceed only to the limited extent supported by a minimal prima facie evidentiary showing; conclusory theories and unsupported damages allegations could not satisfy the TCPA.

## Legal Principles

- Under the TCPA, once a movant shows the legal action is based on or in response to the movant’s exercise of protected rights, the court must dismiss unless the nonmovant establishes by “clear and specific evidence” a prima facie case for each essential element.
- “Clear and specific evidence” demands more than notice pleading and conclusory allegations but does not impose a heightened burden comparable to “clear and convincing,” and it does not exclude circumstantial proof.
- A TCPA prima facie case requires the minimum evidence necessary to support a rational inference that the allegations are true.
- For defamation at the TCPA stage, the plaintiff must produce nonconclusory evidence of the allegedly defamatory statement(s), falsity, the requisite degree of fault, and actual damages when required; generalized assertions of reputational harm or speculative lost profits are insufficient.
- Business disparagement requires proof of special damages (economic loss) with sufficient factual detail to connect the loss to specific disparaging statements; conclusory damages evidence fails the TCPA standard.
- Civil conspiracy is derivative and cannot proceed absent adequate prima facie proof of an underlying tort.

## Conclusion

The Texas Supreme Court construed the TCPA’s “clear and specific evidence” requirement to allow circumstantial evidence while demanding concrete, nonconclusory proof of each claim element, and it denied mandamus relief, leaving in place TCPA dismissals as to some parties and narrowing what defamation-related claims could proceed.


In re Lipsky, 460 S.W.3d 579 (Tex. 2015)