Gregory Sullo and Brian Zimmerman v. Felix Michael Kubosh A/K/A Kubosh Bail Bonding, Paul Kubosh A/K/A Kubosh Law Office ( 2019 )


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  • Opinion issued November 19, 2019
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-18-00418-CV
    ———————————
    GREGORY SULLO AND BRIAN ZIMMERMAN, Appellants
    V.
    FELIX MICHAEL KUBOSH A/K/A KUBOSH BAIL BONDING, PAUL
    KUBOSH A/K/A KUBOSH LAW OFFICE, Appellees/Cross-Appellants
    V.
    WILLIAM CARTER, SANDRA ARNAEZ, JASON ROCHA, EDUWIGIS
    SUASTE, SARA PADILLA, GRANT HIGHTOWER, WALTER
    LETHERMON, JONATHAN GLENN, KREGG GIBSON, GERRY
    CHANEY, JUAN ALVAREZ, JAIME GAYTKO, EDWARD CARNEY,
    PAUL COLLINS, CIRINO HERNANDEZ, PRESTON BAWA, MONICA
    WIRZ, EDRICH MACK, MERCY HAYES, JOSE ALAMO, RUBY
    SEPULVEDA, SEAN SIMON, KRISTAL OROZCO, JANET RAMIREZ-
    HERRERA, BALTAZAR MARTINEZ, SHELTON HARRIS, RANDALL
    STEVISON, BRIAN ARELLANO, FELIPE CAVAZOS, LARRY RICHARD,
    JEFFERY RHODES, HECTOR CUEVAS, CYNTHIA SANCHEZ, GINA
    TORRES, ROBERTO LARES, LEON TOUSANT, LINDA MARTIN,
    GREGORY BARNES, ELIZABETH GUERRERO, ALEICIA ROBERTS,
    ANA REYES, DERRICK RIVERS, DEVIN BARRIOS, CHRISTINA
    VILLANUEVA, PRISCILLA MUNOZ, JEANETTE MAYA, ERIC AYALA,
    FARID ABI-SAAB, JOE PECINA, ANDREW RAMIREZ, MAURICIO
    MENDEZ-BARRERA, MIGUEL DIAZ, PATRICK WASHINGTON, EARL
    CHILTON, DOROTHY SCOTT, THOMAS PITTARD, JUANITA MARIN,
    JULIO TORRES, RAYMOND FORD, VIRGINIA KNAUFF, CHERRY
    AYO-VAUGHN, JOSE CAMPA, ONYEKACHI EKEZIE, RIGGO
    DOMINGUEZ, MARQUIS WILLIAMS, RICARDO TREVINO, JESUS
    CASTRO, EDUARDO VALDEZ, BOLIVAR SIERRA, EVA CASTILLO,
    GUSTAVO GARCIA, SETTEA MENEDO, MICHAEL YOUNGBLOOD,
    AND BRANDON NASH, Cross-Appellees
    On Appeal from the 333rd District Court
    Harris County, Texas
    Trial Court Case No. 2013-50819
    OPINION
    This interlocutory appeal arises out of three consolidated lawsuits filed by
    William Carter and seventy-three other plaintiffs (collectively, “the Carter parties”)
    against Felix Michael Kubosh, Kubosh Bail Bonding, Paul Kubosh, and Kubosh
    Law Office (collectively, “the Kuboshes”) for violation of a civil statute prohibiting
    barratry. During the course of this litigation, the Kuboshes filed suit against Brian
    Zimmerman, the Carter parties’ counsel of record, and Gregory Sullo, an attorney at
    Sullo & Sullo, LLP, a law firm that had initially represented the Carter parties before
    engaging Zimmerman to file suit on their behalf. Sullo, Zimmerman, and the
    Kuboshes all filed motions to dismiss the claims against them under the Texas
    Citizens Participation Act (“TCPA” or “the Act”). The trial court denied all three
    motions to dismiss.
    2
    Sullo, Zimmerman, and the Kuboshes all appealed. Each of the appellants and
    cross-appellants argue that the trial court erred in denying their respective motions
    to dismiss under the TCPA.
    We affirm the trial court’s denial of all three TCPA motions to dismiss.
    BACKGROUND
    Andrew Sullo and his brother, Gregory Sullo, are attorneys and partners in the
    Houston law firm of Sullo & Sullo, LLP. Andrew Sullo and Sullo & Sullo are third-
    party defendants in the underlying proceedings, but they were not parties to the
    TCPA motions discussed in this opinion and are not parties to this interlocutory
    appeal. Attorneys at Sullo & Sullo practice in multiple areas of the law, including,
    relevant to this case, defense and bonding services for traffic tickets and warrants
    arising out of unpaid tickets. Their competitors include Kubosh Bail Bonding, which
    is owned and operated by Felix Michael Kubosh, and Kubosh Law Office, which is
    owned and operated by Paul Kubosh.
    A.    Civil and Criminal Statutes and Disciplinary Rule Prohibiting Barratry
    In 2011, the Texas Legislature passed Texas Government Code section
    82.0651, entitled “Civil Liability for Prohibited Barratry.” This statute provides, in
    relevant part:
    (c)    A person who was solicited by conduct violating Section
    38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas
    Disciplinary Rules of Professional Conduct of the State Bar of
    Texas, regarding barratry by attorneys or other persons, but who
    3
    did not enter into a contract as a result of that conduct, may file
    a civil action against any person who committed barratry.
    (d)    A person who prevails in an action under Subsection (c) shall
    recover from each person who engaged in barratry:
    (1)   a penalty in the amount of $10,000;
    (2)   actual damages caused by the prohibited conduct; and
    (3)   reasonable and necessary attorney’s fees.
    (e)    This section shall be liberally construed and applied to promote
    its underlying purposes, which are to protect those in need of
    legal services against unethical, unlawful solicitation and to
    provide efficient and economical procedures to secure that
    protection.
    TEX. GOV’T CODE ANN. § 82.0651(c)–(e). This statute became effective on
    September 1, 2011.
    Penal Code section 38.12(a), entitled “Barratry and Solicitation of
    Professional Employment,” provides that a person commits the criminal offense of
    barratry if, with intent to obtain an economic benefit, the person:
    (1)    knowingly institutes a suit or claim that the person has not been
    authorized to pursue;
    (2)    solicits employment, either in person or by telephone, for himself
    or for another;
    (3)    pays, gives, or advances or offers to pay, give, or advance to a
    prospective client money or anything of value to obtain
    employment as a professional from the prospective client;
    (4)    pays or gives or offers to pay or give a person money or anything
    of value to solicit employment;
    (5)    pays or gives or offers to pay or give a family member of a
    prospective client money or anything of value to solicit
    employment; or
    4
    (6)    accepts or agrees to accept money or anything of value to solicit
    employment.
    TEX. PENAL CODE ANN. § 38.12(a).
    Section 38.12(b) provides that a person commits an offense if the person:
    (1)    knowingly finances the commission of an offense under
    Subsection (a);
    (2)    invests funds the person knows or believes are intended to further
    the commission of an offense under Subsection (a); or
    (3)    is a professional who knowingly accepts employment within the
    scope of the person’s license, registration, or certification that
    results from the solicitation of employment in violation of
    Subsection (a).
    
    Id. § 38.12(b).
    Penal Code section 38.12 dovetails with Rule 7.03(a) and (f) of the Texas
    Disciplinary Rules of Professional Conduct, which provides:
    (a)    A lawyer shall not by in-person contact, or by regulated
    telephone or other electronic contact as defined in paragraph (f)
    seek professional employment concerning a matter arising out of
    a particular occurrence or event, or series of occurrences or
    events, from a prospective client or nonclient who has not sought
    the lawyer’s advice regarding employment or with whom the
    lawyer has no family or past or present attorney-client
    relationship when a significant motive for the lawyer’s doing so
    is the lawyer’s pecuniary gain. . . .
    ....
    (f)    As used in paragraph (a), “regulated telephone or other electronic
    contact” means any electronic communication initiated by a
    lawyer or by any person acting on behalf of a lawyer or law firm
    that will result in the person contacted communicating in a live,
    5
    interactive manner with any other person by telephone or other
    electronic means. For purposes of this Rule a website for a
    lawyer or law firm is not considered a communication initiated
    by or on behalf of that lawyer or firm.
    TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 7.03(a), (f), reprinted in TEX. GOV’T
    CODE ANN., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
    B.    Sullo’s “Price Match Program” and Initial Contact with the Carter
    Parties
    Almost immediately after the civil barratry statute, Government Code section
    82.0651, became effective in September 2011, Andrew Sullo informed individuals
    who inquired about bonds and representation for traffic tickets that were in “warrant
    status” that his office had a “price match program.” Under this program, the
    individual would call a competing bail bond company to receive a quote for the price
    of the bond, and Sullo promised that his office would beat the quoted price by ten
    dollars. Prior to the individual’s making the phone call, Sullo and the individual
    would review a “Disclosure & Agreement” form that described the price match
    program. This form included a paragraph that stated:
    II.    Potential Legal Action — Attorney [Sullo] has reason to
    suspect that upon Client [the respective individual] making Client’s
    Price Match phone call to the bond company, the Bond Company will
    transfer the call to a law firm without Client’s request or consent.
    Attorney believes this action may give rise to a civil cause of action
    against the bond company or law firm under a new barratry statute or
    other law which, if successful, may result in money damages for Client.
    In some instances, the bond company may also quote on behalf of an
    attorney or law firm which may also give rise to a cause of action. Client
    agrees to make this phone call knowing that these potentially illegal or
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    unethical actions may occur by the bond company or law firm. After
    Client’s phone call, Attorney will discuss with Client the potential for
    a legal cause of action by Client against the bond company. If Client
    wishes to pursue a legal cause of action against the bond company and
    Attorney believes a legal cause of action does indeed exist, Client will
    be required to sign a separate contact agreement with Attorney. By
    signing this Disclosure & Agreement, Client is not committed or
    obligated to hire Attorney to pursue a legal cause of action against the
    bond company.
    (Emphasis added). The form also asked each individual for their permission to
    record their phone call to the competing bond company, stating, “This recording may
    be used, with Client’s consent, to help prove the illegal and unethical action by the
    bond company or law firm.”
    The program targeted the Kuboshes’ law firm and bail bond company. Prior
    to the program participants’ making their phone calls, Sullo provided each individual
    with a printed instruction sheet that set out certain questions for the participant to
    ask. These questions included whether the quoted price for the bond included
    attorney representation and whether the individual should report to the office of
    Kubosh Bail Bonding or Kubosh Law Office—which were located adjacent to each
    other—to complete paperwork.
    All seventy-four Carter parties called Kubosh Bail Bonding, and, in each case,
    an employee of Kubosh Bail Bonding answered the phone. When the Carter parties
    informed the employee that they had unpaid traffic tickets that were in warrant
    status, the employee transferred the call to Kubosh Law Office. A Kubosh Law
    7
    Office employee then asked each of the Carter parties questions about their tickets,
    quoted them a price, and stated that the price included both the bond and legal
    representation because the office did not offer bonding services without legal
    representation. After the phone call ended, each of the Carter parties signed an
    attorney-client agreement with Sullo, in which the individual “retain[ed] Attorney to
    prosecute all claims against all necessary defendants arising from possible acts of
    barratry committed in attempting to obtain legal services.” The representation
    contract included a provision allowing Sullo to associate with other attorneys and
    law firms to prosecute the case. Eventually, each of the cases was referred to Brian
    Zimmerman of Zimmerman Axelrad and Joe Fisher of Provost Umphrey. Each of
    the Carter parties ultimately signed a new attorney-client contract agreeing to the
    referral and to the division of any recovered attorney’s fees among counsel.
    Most of the Carter parties made their phone calls to Kubosh Bail Bonding in
    September and October 2011, although several of the Carter parties made calls in
    2012 and 2013. Seventy-two of the Carter parties met Sullo in his Houston office
    and made their phone calls there. Two of the Carter parties, Michael Youngblood
    and Brandon Nash, had traffic tickets from the City of Houston, but they were
    Beaumont residents, and both of these individuals met with Sullo in a conference
    room at the Beaumont office of Provost Umphrey to make their calls.
    8
    C.    The Civil Barratry Lawsuits
    Michael Youngblood, with Brian Zimmerman as his counsel of record, filed
    suit against the Kuboshes in Jefferson County, where he resided, on April 5, 2013.
    He asserted that the Kuboshes had violated the civil barratry statute, Government
    Code section 82.0651, and he alleged:
    On or about September 19, 2012, Plaintiff contacted Kubosh Bail which
    is owned and operated by Michael Kubosh. Plaintiff had three traffic
    tickets on which he needed to post bonds because they were in “warrant
    status.” Plaintiff contacted Kubosh Bail after receiving a Kubosh Bail
    Bonding business card containing Mike Kubosh’s name, cell phone
    number, and office number. Based on this contact information, Plaintiff
    dialed the telephone number advertised on Mike Kubosh’s bail bond
    business card. A certified transcript of the telephone conversation is
    attached hereto as Exhibit “A.”
    A representative for Kubosh Bonding Company answered the
    telephone and identified the business as “Kubosh Bonding Company.”
    After Plaintiff informed the representative of Kubosh Bail that he
    needed a quote for bonds for traffic tickets, the representative placed
    Plaintiff’s call on hold. Shortly thereafter, a different representative
    answered the telephone, and then identified the business as “Kubosh
    Law.” See Exhibit “A.” Upon information and belief, Kubosh Law is
    owned and operated by Paul Kubosh.
    The Kubosh Law representative then quoted Plaintiff a price for a bond
    for his traffic cases. The representative from Kubosh Law further
    indicated that the price quoted for a bond included the posting of the
    bond as well as the fee for an attorney to represent Plaintiff on his
    traffic cases. Plaintiff never sought an attorney to represent him in
    connection with obtaining his bond. 
    Id. He attached
    to his pleading a transcript of a conversation he had had with Michael
    Kubosh, which included a notation that an “unidentified male” whispered an
    9
    instruction to Youngblood that he answer “no” to a particular question. This
    “unidentified male” was later identified as Andrew Sullo.
    William Carter, with Zimmerman as his counsel of record, filed suit in Harris
    County against the Kuboshes for violation of the civil barratry statute on August 28,
    2013. Over the next two months, Carter amended his petition several times to add a
    total of seventy-one additional plaintiffs. The factual allegations in Carter’s petitions
    were substantively identical to the allegations in Youngblood’s petition. The
    Kuboshes answered Carter’s lawsuit on September 30, 2013, and they asserted
    counterclaims, including claims for injunctive and declaratory relief relating to their
    contention that the civil barratry statute violated their constitutional rights.
    Brandon Nash, also with Zimmerman as counsel of record, filed a separate
    suit in Jefferson County against the Kuboshes for violation of the civil barratry
    statute on October 1, 2014. The factual allegations in his petition were substantively
    identical to the allegations in Youngblood’s and Carter’s petitions.
    D.    The Kuboshes’ Counterclaims and Third-Party Claims
    During the course of discovery on the Carter parties’ claims and the
    Kuboshes’ counterclaims in this litigation, the Kuboshes learned that Andrew Sullo
    had been involved with the Carter parties and their calls to the Kuboshes. On October
    21, 2014, the Kuboshes amended their counterpetition against the Carter parties and
    10
    filed a third-party action against Andrew Sullo and his law firm, Sullo & Sullo, LLP.
    The Kuboshes’ amended counterpetition contained the following allegations:
    [Andrew] Sullo orchestrated each and every Carter Plaintiff’s and
    another 64 barratrously-solicited strangers’ calls from Sullo’s own
    [Sullo & Sullo] office (as well as other locations) to Kubosh Bonding
    using phone numbers Sullo provided each Carter Plaintiff, along with
    pretextual “price match” scripts, and previously-prepared form
    affidavit instructions listing Kubosh Law as the intended ultimate
    recipient of each Sullo-instructed call.
    Sullo masterminded an attorney-crafted scheme to perpetrate a Fraud
    on the Court, defined in BLACK’S LAW DICTIONARY and case law as “a
    lawyer’s or party’s misconduct so serious that it undermines or is
    intended to undermine the integrity of the proceeding” such as “bribery
    of a juror and introduction of fabricated evidence.” Sullo surreptitiously
    recorded every Carter Plaintiff’s call. Sullo then filed this suit to
    retaliate against the Kubosh Brothers . . . .
    This Court should dismiss the Carter Plaintiffs’ claims because not
    even one “was solicited” by Kubosh Law, to use the passive-tense
    operative verb in the Civil Barratry Statute. Sullo and [Sullo & Sullo]
    have conspired with, and have been aided and abetted by their counsel,
    Zimmerman, and his firm, Zimmerman Axelrad, to barratrously solicit,
    file, and maintain the Carter Plaintiffs, Youngblood and Nash’s
    frivolous lawsuits to reap undeserved economic benefits where their
    perceived pecuniary gain was a significant motivation for the filing and
    maintenance of these lawsuits.
    The Kuboshes’ amended counterpetition sought injunctive and declaratory relief,
    arguing that the civil barratry statute was unconstitutional as applied to them. The
    Kuboshes also asserted claims for common-law fraud and civil conspiracy against
    the Carter parties, Andrew Sullo, and Sullo & Sullo, alleging that the Carter parties
    made their calls to the Kuboshes under false pretenses because they never intended
    to purchase bonding services from the Kuboshes.
    11
    Additionally, the Kuboshes brought claims in this suit against the Carter
    parties, Andrew Sullo, and Sullo & Sullo for violation of the federal Racketeer
    Influenced and Corrupt Organizations Act (“RICO”), alleging that the Carter parties,
    Andrew Sullo, and Sullo & Sullo formed a criminal enterprise under RICO “to serve
    as a flexible vehicle for Third-Party Defendants Sullo and [Sullo & Sullo’s] filing of
    a vengeful, Fraud on the Court lawsuits to destroy or degrade Sullo’s competitors
    Michael Kubosh and Paul Kubosh by embroiling them in legally meritless but
    expensive and time-consuming ‘civil barratry’ litigation.” The Kuboshes alleged
    violations of RICO as well as conspiracy to violate RICO.
    As predicate acts serving as the basis for RICO liability, the Kuboshes alleged
    that the Carter parties, Sullo, and Sullo & Sullo engaged in mail fraud and wire fraud.
    The Kuboshes alleged:
    By sending and receiving courthouse correspondence and service
    copies of court filings in the U.S. mail, and by using the U.S. mail to
    communicate with one another in furtherance of their RICO scheme of
    fraudulently misrepresenting Sullo’s efforts to barratrously orchestrate
    a Fraud on the Court to make money under the guise of conducting
    “price checks” of the Kubosh Brothers, each of the Carter Plaintiffs and
    Third-Party Defendants Sullo and [Sullo & Sullo] have engaged in mail
    fraud in violation of 18 U.S.C. § 1341.
    By repeatedly using the telephone and by tying up the Kubosh Bonding
    and Kubosh Law telephone lines to fraudulently misrepresent
    themselves as ordinary consumers of bail bonding and/or legal services,
    while concealing such facts as Sullo’s presence, Instructions, and
    interest in carrying out his . . . vendetta against the Kubosh Brothers,
    each of the Carter Plaintiffs and Third-Party Defendants Sullo and
    12
    [Sullo & Sullo] have engaged in one or more acts of wire fraud in
    violation of 18 U.S.C. § 1343.
    The Kuboshes alleged that each “fraudulent ‘price check’” call by the Carter parties
    “constituted a separate, independent act of wire fraud that together comprise a
    pattern of racketeering activity.”
    In April 2015, the judicial panel on multidistrict litigation transferred Nash’s
    and Youngblood’s suits—both filed in Jefferson County—to the Harris County
    district court where Carter’s suit was pending for resolution of pretrial matters. See
    TEX. GOV’T CODE ANN. § 74.162 (providing for transfer of “civil actions involving
    one or more common questions of fact pending in the same or different constitutional
    courts, county courts at law, probate courts, or district courts to any district court for
    consolidated or coordinated pretrial proceedings, including summary judgment or
    other dispositive motions, but not for trial on the merits”). All three suits currently
    remain pending in the Harris County district court.
    Although in the years this litigation has been pending the Carter parties have
    filed amended petitions in this case, adding factual details, the only cause of action
    they have asserted against the Kuboshes is a claim for violation of the civil barratry
    statute.
    On April 6, 2016, the Kuboshes filed their fifth amended counterpetition and
    fourth amended third-party petition. In this petition, the Kuboshes alleged:
    13
    The precise involvement of Zimmerman and [Joe] Fisher in planning
    and executing the calls is not yet completely known, but we do know
    from the Carter Plaintiffs’ Amended Privilege Log that [Andrew] Sullo
    and Zimmerman were in email communication as early as January 27,
    2012 “concerning status of barratry litigation”—a little over two
    months following the first and most significant spate of calls made from
    Sullo’s office to the Kubosh Defendants. . . . Sullo and Zimmerman
    began communicating “concerning the status of barratry litigation”
    almost nine months before Youngblood and Nash made and recorded
    their calls.
    ....
    [T]he Sullo Plaintiffs’ privilege log provided to the Kubosh
    Defendants . . . shows the first discussions to set up this conference
    room [at Provost Umphrey] were between Andrew Sullo and Brian
    Zimmerman on July 28, 2012, nearly two months before Mr.
    Youngblood’s call to Kubosh Bail. There can be no reason at all for a
    discussion to reserve the conference room between the lawyer, Andrew
    Sullo, who entered into a contract with these Plaintiffs to make a phone
    call in exchange for a share in the resulting lawsuit, and one future
    counsel of record, Brian Zimmerman, at the offices of another future
    counsel of record, Joe Fisher, to which Sullo would have to drive 90
    miles to record the call, except to further their criminal
    enterprise. . . . That is, the wrongfully-withheld e-mails show that the
    Provost Umphrey conference room was for nearly three months the
    center of Sullo’s enterprise to target the Kubosh Defendants by
    launching the first of a pattern of Sullo-orchestrated, Sullo-scripted, and
    Sullo-recorded sham “Price Match” calls to the Kubosh Defendants.
    In addition to the claims asserted in their earlier counterpetition, the Kuboshes added
    causes of action for violating a federal wiretap statute and Texas’s Interception of
    Communications Act arising out of the recording of the Carter parties’ calls to the
    Kuboshes.
    14
    The Kuboshes also added a party to this suit: Gregory Sullo.1 The Kuboshes
    “sued G. Sullo in both his individual capacity and as an attorney in and managing
    partner of [Sullo & Sullo] who foisted this fraud upon the courts of Texas and on the
    Kubosh Defendants in his supervisory and representative capacity at [Sullo &
    Sullo].” The Kuboshes alleged that Gregory Sullo was “possibly” present and
    involved when the Carter parties made their calls to the Kuboshes, and thus
    committed wire fraud, a predicate act under RICO. The Kuboshes also alleged that
    Andrew Sullo, Gregory Sullo, and Sullo & Sullo committed the predicate act of
    obstruction of justice “[b]y formulating a fraudulent scheme using the Sullo fake-
    plaintiffs fraudulent ‘price check’ Instructions, actively participating in the
    commission of a fraud on this Court, presenting perjurious explanations for his
    fraudulent ‘price check’ Instructions and cookie-cutter affidavits, and destroying
    material parts of the ‘price check’ record within their sole possession.”
    Gregory Sullo was not served with this petition naming him as a third-party
    defendant until November 29, 2017, more than eighteen months after the Kuboshes
    filed this petition.
    1
    In this petition, the Kuboshes also asserted individual claims against Edward James
    Carney, whose son, Edward Buckley Carney, was one of the Carter parties and who
    had died prior to the start of litigation. The Kuboshes asserted that, during the
    pendency of the case, Edward James Carney had fraudulently signed documents on
    his son’s behalf without disclosing that he was acting in a representative capacity
    for his son’s estate.
    15
    E.    The Kuboshes’ Petition for Mandamus Relief
    In May 2016, shortly after they filed their fifth amended counterpetition and
    fourth amended third-party petition, the Kuboshes sought mandamus relief in this
    Court relating to the trial court’s decision not to compel the Carter parties to disclose
    unredacted copies of a series of emails between Andrew Sullo, Brian Zimmerman,
    and a paralegal at Provost Umphrey, ranging from July through early October 2012,
    concerning the reservation of a conference room at the offices of Provost Umphrey
    in Beaumont so Youngblood and Nash could make their calls to the Kuboshes. The
    Kuboshes argued that withholding these emails was an improper offensive use of the
    work product privilege, and a panel of this Court agreed. See In re Kubosh Bail
    Bonding, 
    522 S.W.3d 75
    (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding).
    This Court reversed the trial court’s order denying the Kuboshes’ motion to compel
    and required the Carter parties to disclose the unredacted emails.
    F.    The Kuboshes’ Amended Counterclaims and Third-Party Claims
    On December 19, 2017, the Kuboshes filed their sixth amended
    counterpetition and fifth amended third-party petition, raising the same claims as in
    their previous petition, but adding claims against Brian Zimmerman. They alleged:
    Andrew Sullo framed the “price match” questions to make the Sullo
    Plaintiffs [the Carter parties] appear as making good faith business
    inquiries and to disguise Sullo’s and Zimmerman’s role in orchestrating
    the calls. Sullo, Zimmerman, Greg Sullo, Sullo & Sullo (collectively,
    the “Sullo Parties”) and the Sullo Plaintiffs conspired to execute a
    16
    criminal enterprise and pre-planned Fraud on the Court and the
    Kuboshes.
    They further alleged that “[a] key part of the Sullo Plaintiffs’ and Sullo Parties’
    conspiracy and criminal enterprise is to hide behind Texas discovery and evidentiary
    rules to deliberately obfuscate discovery of the operative facts underlying the
    lawsuits.”
    With respect to their RICO claims, the Kuboshes alleged:
    All and each of the Sullo Plaintiffs, the Sullo Parties [including Gregory
    Sullo and Zimmerman] and Edwards James Carney, and their counsel
    of record, along with numerous persons who called the Kubosh
    Defendants under A. Sullo’s “price match” instructions but chose not
    to become plaintiffs in this lawsuit, formed a RICO association-in-fact
    enterprise with common and continuing purposes, namely, to serve as
    a flexible vehicle to set up and file these in terrorem lawsuits based
    upon created facts for the express purpose of forcing a settlement,
    obtaining judgment, and causing the Kubosh Defendants to incur
    enormous legal fees and to destroy or degrade the Sullo Parties’
    competitors Michael Kubosh and Paul Kubosh by embroiling them in
    legally meritless but expensive and time-consuming “civil barratry”
    litigation. [Sullo & Sullo] and Zimmerman Axelrad are also
    racketeering enterprises used for these same objectives.
    They alleged that the emails that were the subject of the prior mandamus proceeding
    in this Court constituted RICO predicate acts of wire fraud, as Andrew Sullo and
    Zimmerman used these emails “to procure ‘a Beaumont Plaintiff’ with the stated
    purpose to create fraudulent lawsuits, fraudulently establish venue [in Jefferson
    County] and fraudulently file and maintain the lawsuits.”
    The Kuboshes further alleged:
    17
    The Sullo Plaintiffs’ lawsuits themselves are the goal of and central to
    the RICO enterprise actively and continuously supported and furthered
    by the Sullo Plaintiffs, the Sullo Parties and Edward James Carney. In
    addition to the Sullo Plaintiffs’ lawsuits being the goal and ultimate
    mechanism of the racketeering activities of the RICO enterprise, the
    Sullo Parties have extended their racketeering activities to fraudulently
    claim privileges under the Texas rules in order to conceal their actions,
    offensively employing these privileges as part and parcel of their Fraud
    on the Court, including Brian Zimmerman filing a sworn declaration
    that directly contradicts representations as officer of the court of his co-
    counsel Joe Fisher in apparent perjury and obstruction of justice to
    maintain the veil of secrecy of his and A. Sullo’s participation in the
    underlying facts of the case and the operative facts themselves.
    They alleged that the Sullo Parties—Andrew and Gregory Sullo, Sullo & Sullo, and
    Brian Zimmerman—used the United States mail as part of their criminal enterprise,
    including Zimmerman’s actions in mailing pleadings and discovery responses and
    in sending and receiving correspondence to and from the trial court. The Kuboshes
    also alleged that the Sullo Parties improperly used the trust account held by
    Zimmerman’s law firm, Zimmerman Axelrad, in connection with posting cash bonds
    for Youngblood and Nash on their warrants to deliberately conceal Andrew Sullo’s
    involvement with the case.
    In this petition, the Kuboshes asserted their claims for injunctive and
    declaratory relief, common-law fraud, civil conspiracy, their RICO claims, and
    violations of federal and Texas wiretapping statutes against all of the “Sullo Parties,”
    which was defined in their pleadings to include Gregory Sullo and Brian
    Zimmerman.
    18
    G.    Proceedings Under the Texas Citizens’ Participation Act
    On January 26, 2018, Zimmerman moved to dismiss all of the claims against
    him pursuant to the TCPA. Zimmerman argued that the Kuboshes’ claims against
    him were based on, related to, or filed in response to his right to petition, his right of
    free speech, and his right of association, and, thus, the TCPA applied to the
    Kuboshes’ claims. Specifically, Zimmerman argued that all of the claims against
    him targeted his actions as counsel for the Carter parties, implicating his right to
    petition as defined by the TCPA. Zimmerman challenged the Kuboshes’ ability to
    present clear and specific evidence establishing a prima facie case on each element
    of each cause of action asserted against him. Zimmerman also argued that, even if
    the Kuboshes could establish a prima facie case, he could establish two defenses to
    their claims—the attorney-immunity doctrine, which precluded an attorney’s
    liability to nonclients for actions taken within the scope of representing a client, and
    the applicable statute of limitations—which required the trial court to dismiss the
    claims against him.
    Gregory Sullo also moved for dismissal of all of the claims against him
    pursuant to the TCPA on January 26, 2018. His motion to dismiss largely mirrored
    Zimmerman’s, although he pointed out that the Kuboshes had alleged no specific
    actions taken by him, instead “merely lump[ing him] in with allegations against the
    ‘Sullo Parties.’” He argued that no evidence supported any of the Kuboshes’ claims
    19
    against him, contending that his “association with the law firm of Sullo & Sullo and
    Andrew Sullo alone cannot create a cognizable claim.” He asserted that, even if the
    Kuboshes could establish a prima facie case against him on each of their claims, he
    could establish that their claims were barred by the statute of limitations, entitling
    him to dismissal under the TCPA. Both Zimmerman’s and Gregory Sullo’s TCPA
    motions to dismiss addressed all of the Kuboshes’ causes of action asserted against
    them: common-law fraud, civil conspiracy, RICO violations, conspiracy to violate
    RICO, and violations of state and federal wiretapping laws.
    On March 29, 2018, the Kuboshes responded to Gregory Sullo’s and
    Zimmerman’s motions to dismiss. In addition to arguing that their claims against
    Sullo and Zimmerman did not implicate any of the statutory rights protected under
    the TCPA, they also argued that their claims were not subject to the TCPA because
    the claims fall within the TCPA’s exemption for “commercial speech.” The
    Kuboshes also stated:
    Zimmerman and Greg Sullo have also moved to dismiss claims of
    wiretapping and common law fraud, which the Kuboshes do not allege
    against Zimmerman and Greg Sullo. The wiretapping claims are against
    Andrew Sullo and the Sullo Plaintiffs [the Carter parties], who made
    and recorded the calls for use for tortious and criminal purposes.
    20
    The Kuboshes therefore, in arguing against Sullo’s and Zimmerman’s TCPA
    motions, defended only their claims for RICO violations and for conspiracy to
    violate RICO.2
    With respect to Gregory Sullo, the Kuboshes argued that his “active
    participation in this conspiracy to barratrously recruit and fund Kubosh-suing
    plaintiffs is clear,” noting that the Carter parties’ amended privilege log references
    numerous emails sent to Sullo or that he was copied on, “underscor[ing] that Sullo
    & Sullo was being used as a RICO enterprise—that it was not just Andrew Sullo
    working in his section, but that he deployed the full resources of his firm.” The
    Kuboshes also argued that neither Zimmerman nor Sullo established an affirmative
    defense to the RICO claims asserted against them.
    In addition to responding to Sullo’s and Zimmerman’s TCPA motions, the
    Kuboshes moved to dismiss the Carter parties’ civil barratry claims against them
    pursuant to the TCPA. The Kuboshes filed their TCPA motion on March 29, 2018,
    nearly five years after Youngblood filed the first barratry suit against them. In their
    2
    At the hearing before the trial court on the TCPA motions, the Kuboshes’ counsel
    stated: “[T]he only claims we have against them [Zimmerman and Gregory Sullo]
    are the RICO claims and the conspiracy to commit RICO claims. We never brought
    the—the—the wiretapping claims. They were not abandoned as a result of this
    motion. They were never brought in the first place. They are—actually, they’re
    rereading the petition to create claims that don’t exist for purposes of attacking it by
    their motion. All we have brought against Greg Sullo and Brian Zimmerman are the
    RICO and conspiracy to commit RICO.”
    21
    motion, the Kuboshes argued that “[t]he underlying speech involved in each Plaintiff
    call to the Kuboshes, and the Kuboshes’ response to their inquiries, involves a
    ‘matter of public concern’ under the TCPA definition as an issue related to ‘a good,
    product, or service in the marketplace.’” They further argued that the Carter parties
    could not establish a prima facie case on each element of their civil barratry claims,
    asserting that they engaged in no prohibited conduct when the Carter parties called
    and that the Carter parties could not prove that they were solicited by the Kuboshes.
    The Kuboshes further argued that good cause existed to permit the late-filing
    of their motion to dismiss:
    The Kuboshes have good cause for the late filing of the motion in that
    any reasonable interpretation of TCPA would inform that it is not
    available in this case because of the commercial speech exception of
    the TCPA. If the exception is not found to apply in the cases of
    Zimmerman’s and Greg Sullo’s motions to dismiss, it should not apply
    to the Sullo Plaintiffs’ claims against the Kuboshes and the court should
    hear all the motions to dismiss.
    Good cause further exists because Zimmerman’s and Greg Sullo’s
    motions to dismiss would permit these issues to be determined solely
    from a one-sided perspective and would be inconsistent with the
    purposes and intent of the TCPA. Filing by Greg Sullo and Brian
    Zimmerman at this stage of the proceedings compels examination by
    the Court of all the underlying TCPA issues, and not just those in
    connection with Brian Zimmerman’s and Greg Sullo’s motions to
    dismiss.
    After holding a hearing, the trial court denied all three TCPA motions to
    dismiss. The trial court did not state its rationale in the order denying the motions.
    This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN.
    22
    § 27.008(b) (providing that appellate court shall expedite appeal from trial court
    order on motion to dismiss legal action under TCPA).
    THE TCPA MOTIONS TO DISMISS
    The trial court denied Sullo’s, Zimmerman’s, and the Kuboshes’ TCPA
    motions to dismiss. Each party argues that the trial court erred by making these
    rulings.
    A.    Standard of Review and Governing Law
    The TCPA “protects citizens who [associate,] petition or speak on matters of
    public concern from retaliatory lawsuits that seek to intimidate or silence them.” 3
    Youngkin v. Hines, 
    546 S.W.3d 675
    , 679 (Tex. 2018) (quoting In re Lipsky, 
    460 S.W.3d 579
    , 584 (Tex. 2015)); see TEX. CIV. PRAC. & REM. CODE ANN. § 27.002
    (“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.”); D
    Magazine Partners, L.P. v. Rosenthal, 
    529 S.W.3d 429
    , 433–34 (Tex. 2017)
    3
    The Texas Legislature amended the TCPA in its most recent legislative session. The
    amendments are effective September 1, 2019. Because this suit was filed before the
    effective date of the amendments, it is governed by the statute as it existed before
    the amendments, and all of our citations and analysis are to the TCPA as it existed
    prior to September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–
    12, 2019 Tex. Sess. Law Serv. 684, 684–87 (to be codified at TEX. CIV. PRAC. &
    REM. CODE ANN. §§ 27.001–.011).
    23
    (recognizing that TCPA is designed to balance these dual policies). The TCPA “shall
    be construed liberally to effectuate its purpose and intent fully.” ExxonMobil
    Pipeline Co. v. Coleman, 
    512 S.W.3d 895
    , 898 (Tex. 2017) (per curiam) (quoting
    TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b)).
    “To effectuate the statute’s purpose, the Legislature has provided a two-step
    procedure to expedite the dismissal of claims brought to intimidate or to silence a
    defendant’s exercise of these First Amendment rights.” 
    Id. (citing TEX.
    CIV. PRAC.
    & REM. CODE ANN. § 27.003); In re 
    Lipsky, 460 S.W.3d at 586
    . For a legal action to
    be brought “to intimidate or to silence a defendant’s exercise of . . . First
    Amendment rights,” see 
    ExxonMobil, 512 S.W.3d at 898
    , and in retaliation for a
    defendant’s exercise of those constitutional rights, the action must be “based on,
    relate[] to, or is in response to a party’s exercise of the right of free speech, right to
    petition, or right of association.” See TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.003(a). That party may then file a motion to dismiss the legal action. 
    Id. A TCPA
    motion to dismiss must be filed not later than the 60th day after the
    date of service of the legal action, but the trial court may extend the time to file a
    motion to dismiss on a showing of good cause. 
    Id. § 27.003(b);
    see 
    id. § 27.001(6)
    (defining “legal action” as “a lawsuit, cause of action, petition, complaint, cross-
    claim, or counterclaim or any other judicial pleading or filing that requests legal or
    equitable relief”).
    24
    To obtain dismissal under the TCPA, the moving party must establish, as a
    threshold matter, that the TCPA properly applies to the legal action against it.
    
    Youngkin, 546 S.W.3d at 679
    . Hence, the first step in analyzing a motion to dismiss
    under the TCPA requires “determining whether the defendant established that the
    plaintiffs’ suit was in response to the defendant’s having exercised [his or] her
    constitutional right to free speech, petition, or association.” S & S Emergency
    Training Sols., Inc. v. Elliott, 
    564 S.W.3d 843
    , 846 (Tex. 2018); 
    Youngkin, 546 S.W.3d at 680
    ; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b).
    The TCPA statutorily defines “exercise of the right of free speech,” “exercise
    of the right to petition,” and “exercise of the right of association.” The TCPA defines
    “exercise of the right of association” as “a communication between individuals who
    join together to collectively express, promote, pursue, or defend common interests.”
    TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2). The “exercise of the right of free
    speech” is defined as “a communication made in connection with a matter of public
    concern,” and a “matter of public concern” is statutorily-defined to include an issue
    related to (1) health or safety; (2) environmental, economic, or community well-
    being; (3) the government; (4) a public official or public figure; or (5) a good,
    product, or service in the marketplace. 
    Id. § 27.001(3),
    (7); Adams v. Starside
    Custom Builders, LLC, 
    547 S.W.3d 890
    , 892 (Tex. 2018) (noting that TCPA’s
    definition of “exercise of the right of free speech” is “not fully coextensive with”
    25
    right of free speech protected in United States and Texas Constitutions in that, under
    TCPA, communication must be “made in connection with a matter of public
    concern”). The “exercise of the right to petition” is statutorily defined to include, in
    relevant part, “a communication in or pertaining to . . . a judicial proceeding,” and
    “a communication in connection with an issue under consideration or review by” a
    judicial body. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i), (B).
    “Communication” itself is defined to include “the making or submitting of a
    statement or document in any form or medium, including oral, visual, written,
    audiovisual, or electronic.” 
    Id. § 27.001(1);
    Adams, 547 S.W.3d at 894 
    (stating that
    “[a]lmost every imaginable form of communication, in any medium, is covered”
    under TCPA).
    The TCPA expressly states that it does not apply to four different types of
    legal actions, including an action “brought against a person primarily engaged in the
    business of selling or leasing goods or services, if the statement or conduct arises
    out of the sale or lease of goods, services, . . . or a commercial transaction in which
    the intended audience is an actual or potential buyer or customer.” TEX. CIV. PRAC.
    & REM. CODE ANN. § 27.010(b). The party asserting that a claim is exempt from the
    TCPA bears the burden of establishing the applicability of the exemption to its suit.
    Deaver v. Desai, 
    483 S.W.3d 668
    , 673 (Tex. App.—Houston [14th Dist.] 2015, no
    pet.).
    26
    In determining whether to dismiss a legal action under the TCPA, the court
    shall consider the “pleadings and supporting and opposing affidavits stating the facts
    on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.006(a); 
    Adams, 547 S.W.3d at 897
    (“[T]he unique language of the TCPA
    directs courts to decide its applicability based on a holistic review of the pleadings.”).
    If the TCPA movant meets its initial burden to establish the applicability of
    the TCPA, the burden shifts to the nonmoving party, the party bringing the legal
    action, to establish by clear and specific evidence a prima facie case for each
    essential element of the claim in question. 
    Youngkin, 546 S.W.3d at 679
    ; see TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.005(c). The TCPA does not define “clear and
    specific evidence,” but the Texas Supreme Court has held that “clear” means
    “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and “specific” means “‘explicit’ or
    ‘relating to a particular named thing.’” S & S Emergency Training 
    Sols., 564 S.W.3d at 847
    (quoting In re 
    Lipsky, 460 S.W.3d at 590
    ). A “prima facie case,” as used in
    the TCPA, means evidence that is legally sufficient to establish a claim as factually
    true if that evidence is not countered, that is, “the minimum quantum of evidence
    necessary to support a rational inference that the allegation of fact is true.” 
    Id. (quoting In
    re 
    Lipsky, 460 S.W.3d at 590
    ); see In re 
    Lipsky, 460 S.W.3d at 590
    –91
    (stating that TCPA requires more than mere notice pleading; instead, “a plaintiff
    must provide enough detail to show the factual basis for its claim”).
    27
    If the party bringing the legal action establishes a prima facie case on each
    element of its claim, the burden shifts back to the moving party to establish by a
    preponderance of the evidence each essential element of a valid defense to the
    nonmovant’s claim. 
    Youngkin, 546 S.W.3d at 679
    –80; see TEX. CIV. PRAC. & REM.
    CODE ANN. § 27.005(d); 
    ExxonMobil, 512 S.W.3d at 899
    (stating that even if
    plaintiff establishes prima facie case, court will dismiss underlying action if TCPA
    movant can establish each element of valid defense by preponderance of evidence).
    If the court orders dismissal of a legal action under the TCPA, the court shall
    award to the moving party (1) court costs, reasonable attorney’s fees, and other
    expenses incurred in defending against the action “as justice and equity may require”
    and (2) sanctions against the party bringing the underlying legal action “as the court
    determines sufficient to deter the party who brought the legal action from bringing
    similar actions described in [the TCPA].” TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.009(a); D Magazine 
    Partners, 529 S.W.3d at 442
    (holding that, upon dismissal
    of claims under TCPA, defendant “was therefore entitled to an award of reasonable
    attorney’s fees”).
    We review a trial court’s ruling on a TCPA motion to dismiss de novo. Porter-
    Garcia v. Travis Law Firm, P.C., 
    564 S.W.3d 75
    , 83 (Tex. App.—Houston [1st
    Dist.] 2018, pet. denied). We consider the pleadings and the evidence in a light
    28
    favorable to the nonmovant. 
    Id. at 84;
    Dolcefino v. Cypress Creek EMS, 
    540 S.W.3d 194
    , 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
    B.    Gregory Sullo’s and Zimmerman’s TCPA Motions to Dismiss the
    Kuboshes’ Claims Against Them4
    1.     The Kuboshes’ RICO Claims
    In their amended counterpetition and third-party petition, the Kuboshes sued
    Gregory Sullo and Zimmerman for allegedly “barratrously solicit[ing], fili[ing], and
    maintain[ing] the [Carter parties’] frivolous lawsuits to reap underserved economic
    benefits where their perceived pecuniary gain was a significant motivation for the
    filing and maintenance of these lawsuits” in violation of the Texas criminal barratry
    statute, Penal Code section 38.12, Texas Rule of Disciplinary Procedure 7.03, and
    the RICO mail and wire fraud statutes.
    The Kuboshes alleged that Gregory Sullo and Zimmerman, in addition to
    Andrew Sullo and the Carter parties, “conspired to engage in and then did engage in
    mail fraud, wire fraud, violation of federal wiretap law, and perjury that furthered
    the RICO Enterprise’s unlawful purposes, as set forth above.”
    Specifically, the Kuboshes alleged:
    •      “All and each of the Sullo Plaintiffs [and] the Sullo Parties
    [defined to include Gregory Sullo and Zimmerman] . . . formed
    a RICO association-in-fact enterprise with common and
    4
    Sullo and Zimmerman moved to dismiss all of the claims against them pursuant to
    the TCPA. In their response, the Kuboshes addressed only their RICO claims and
    asserted that they had not brought any other claims against Sullo and Zimmerman.
    29
    continuing purposes, namely, to serve as a flexible vehicle to set
    up and file these in terrorem lawsuits based upon created facts
    for the express purpose of forcing a settlement, obtaining
    judgment, and causing the Kubosh Defendants to incur enormous
    legal fees and to destroy or degrade the Sullo Parties’ competitors
    Michael Kubosh and Paul Kubosh by embroiling them in legally
    meritless but expensive and time-consuming ‘civil barratry’
    litigation.”
    •   “Predicate acts of wire fraud are set out in detail in the very
    Emails between A. Sullo and Brian Zimmerman who used the
    emails to procure ‘a Beaumont Plaintiff’ with the stated purpose
    to create fraudulent lawsuits, fraudulently establish venue and
    fraudulently file and maintain the lawsuits.”
    •   “In addition to the Sullo Plaintiffs’ lawsuits being the goal and
    ultimate mechanism of the racketeering activities of the RICO
    enterprise, the Sullo Parties have extended their racketeering
    activities to fraudulently claim privileges under the Texas rules
    in order to conceal their actions, offensively employing these
    privileges as part and parcel of their Fraud on the Court,
    including Brian Zimmerman filing a sworn declaration that
    directly contradicts representations as officer of the court of his
    co-counsel Joe Fisher in apparent perjury and obstruction of
    justice to maintain the veil of secrecy of his and A. Sullo’s
    participation in the underlying facts of the case and the operative
    facts themselves.”
    •   “A. Sullo’s and Brian Zimmerman’s testimony and filings in this
    case have been tailored to address whatever inquiry into the facts
    they seek to obstruct or substantive ruling they seek to foreclose.
    Their actions have been taken with no legitimate purpose and
    only to conceal the truth and to increase the burden and expense
    to the Kubosh Defendants by making the defense of the lawsuits
    so prohibitively expensive as to force a settlement, and to obtain
    judgment on fraudulent premises.”
    •   “These patently frivolous positions and offensive use of work
    product and attorney-client privilege are racketeering activities
    of their criminal enterprise, as recognized by the First Court of
    Appeals [referring to this Court’s prior decision in In re Kubosh
    30
    Bail Bonding], and are targeted to make the litigation
    prohibitively expensive, prevent the discovery of the truth, force
    settlement and obtain a judgment.”
    •   “The Sullo Parties’ . . . racketeering enterprise affects interstate
    commerce because it uses the instrumentalities of interstate
    commerce to tie up at least three Texas civil courts in two
    different counties.”
    •   “[T]he Sullo Parties . . . have used the U.S. mail, an
    instrumentality of interstate commerce, as part of their RICO
    enterprise, including Zimmerman’s certified mailing of Fraud on
    the Court pleadings and discovery responses in Carter,
    Youngblood and Nash as instances of using the U.S. Postal
    Service.”
    •   “[T]he Sullo Parties used accounts at banks to screen A. Sullo’s
    participation in the underlying lawsuits, specifically use of
    Zimmerman Axelrad’s trust account to conceal that A. Sullo was
    actually counsel for Youngblood and Nash for their traffic
    warrant cases and that Zimmerman was actively conspiring to
    conceal the truth regarding their barratrous orchestration of all of
    the Sullo Plaintiffs’ claims.”
    •   “[T]he Sullo Parties used e-mail, an instrumentality of interstate
    commerce, to the Kubosh Defendants and emails between the
    Sullo Parties, specifically including the Emails between A. Sullo
    and Brian Zimmerman to procure a ‘Beaumont Plaintiff’ to
    fraudulently anchor venue in Beaumont for the Youngblood and
    Nash cases.”
    •   “By sending and receiving courthouse correspondence and
    service copies of court filings in the U.S. mail, and by using the
    U.S. mail to communicate with one another in furtherance of
    their RICO scheme of fraudulently misrepresenting the Sullo
    Parties’ efforts to barratrously orchestrate a Fraud on the Court
    to make money under the guise of conducting ‘price checks’ of
    the Kubosh Defendants, each of the Sullo Plaintiffs, the Sullo
    Parties and Edward James Carney have engaged in mail
    fraud . . . .”
    31
    •     “Brian Zimmerman’s actions in setting up the conference room
    at Provost Umphrey for A. Sullo to procure Beaumont Plaintiffs
    Youngblood and Nash’s fake ‘price match’ calls were followed
    up by his handling of the cash bonds to conceal A. Sullo’s
    participation and Brian Zimmerman’s orchestration of these
    claims and manufacturing of the case facts with A. Sullo and
    attorneys in his own firm. The ongoing litigation, as found by the
    First Court of Appeals, is part of the continuing racketeering
    activity, and use of the mails and electronic systems employed
    by the courts are fundamental in carrying them out.”
    •     “By formulating a fraudulent scheme using the Sullo fake-
    plaintiffs fraudulent ‘price check’ instructions, actively
    participating in the commission of a fraud on this Court,
    presenting perjurious explanations for his fraudulent ‘price
    check’ instructions and cookie-cutter affidavits, and destroying
    material parts of the ‘price check’ record within their sole
    possession, Third-Party Defendants A. Sullo, G. Sullo, [and]
    Brian Zimmerman . . . have engaged in obstruction of
    justice . . . .”
    In their response to Sullo’s TCPA motion to dismiss, the Kuboshes argued:
    Greg Sullo’s active participation in this conspiracy to barratrously
    recruit and fund Kubosh-suing plaintiffs is clear. He is a co-owner of
    Sullo & Sullo, the firm that was operated as a criminal enterprise to turn
    their clients into plaintiffs in a critical mass of manufactured claims.
    Greg Sullo is copied on many pieces of email correspondence, as early
    as February 28, 2012 and including several where both Greg Sullo and
    Ms. Shivers [an attorney at Zimmerman Axelrad, and who posted the
    bond for Youngblood and Nash] were copied, on November 1 and 11,
    2013 and again on December 16, 2013. In addition, the amended
    privilege log references emails to which Greg Sullo is a party. Greg
    Sullo’s involvement underscores that Sullo & Sullo was being used as
    a RICO enterprise—that it was not just Andrew Sullo working in his
    section, but that he deployed the full resources of his firm.
    The Kuboshes also argued that “abundant evidence” exists to support an
    inference that Sullo agreed to commit two more racketeering acts,
    32
    including Greg Sullo’s partnership in the criminal enterprise of Sullo &
    Sullo and the evidence of his involvement in the planning and execution
    by his presence on the supposedly work product privileged emails to
    which he was a party. Greg Sullo was also part of the so-called “legal
    strategy” to barratrously solicit clients to sue the Kuboshes.
    With respect to Zimmerman, it is undisputed that the majority of the Carter
    parties’ phone calls to the Kuboshes occurred in September and October 2011, with
    the parties immediately signing attorney-client representation agreements with
    Andrew Sullo. It is also undisputed that Andrew Sullo first contacted Zimmerman
    about the cases in January 2012 and that Zimmerman accepted referral of the cases
    in May or June 2012 and undertook their representation.
    With respect to the basis of their RICO claims, the Kuboshes alleged that
    Zimmerman, along with others, “formed a RICO association-in-fact enterprise with
    common and continuing purposes, namely, to serve as a flexible vehicle to set up
    and file these in terrorem [civil barratry] lawsuits based upon created facts.” The
    Kuboshes alleged that Zimmerman committed a RICO predicate act of wire fraud
    by exchanging emails with Andrew Sullo beginning in July 2012 “to procure ‘a
    Beaumont Plaintiff’ with the stated purpose to create fraudulent lawsuits,
    fraudulently establish venue and fraudulently file and maintain the lawsuits.”
    33
    2.    Sullo and Zimmerman’s Initial Burden as TCPA Movants to Show
    the Applicability of the TCPA to the Kuboshes’ RICO Claims Against
    Them
    In moving to dismiss the Kuboshes’ RICO claims against them under the
    TCPA, Sullo and Zimmerman bore the initial burden of showing by a preponderance
    of the evidence that the TCPA applies to the claims asserted against them and that
    no exemption from TCPA coverage applies. In this case, they were required to show
    that the conduct for which they were sued were “communication[s] made in
    connection with a matter of public concern,” which, in the context of this case,
    necessarily means communications related to a “service in the marketplace”—here
    the provision of legal services by Sullo and Zimmerman—and that those
    communications were protected. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.001(3), (7); 
    Adams, 547 S.W.3d at 892
    .
    a.     Whether the Kuboshes’ suit against Sullo and Zimmerman is
    brought in relation to a matter of public concern
    Both the barratry claims that the Sullo firm and Zimmerman have brought and
    maintained against the Kuboshes on behalf of the Carter parties and the RICO claims
    that the Kuboshes have brought against Sullo and Zimmerman for filing and
    maintaining the Carter parties’ barratry suits against the Kuboshes arise out of a
    matter of public concern—the allegedly barratrous sale of legal services. See TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7); cf. DeAngelis v. Protective Parents
    Coalition, 
    556 S.W.3d 836
    , 852 (Tex. App.—Fort Worth 2018, no pet.) (“[P]ublic
    34
    or private communications related to the provision of legal services to the public by
    licensed attorneys . . . are recognized as matters of ‘public concern’ implicating the
    exercise of free speech under the TCPA.”); 
    Deaver, 483 S.W.3d at 673
    –74 (holding
    that statements that attorney is prejudiced and will lie to win case relate to attorney’s
    legal services, which are offered in marketplace, and thus statements address matters
    of public concern). Accordingly, this Court must determine in this TCPA suit
    whether Sullo and Zimmerman have shown by a preponderance of the evidence that
    the actions for which the Kuboshes have sued them are constitutionally protected
    communications in relation to their provision of legal services to their clients and
    are not, as the Kuboshes allege, actions that are not constitutionally protected but
    are, instead, actionable in themselves as communications prohibited by law.
    We note as a threshold matter that the violations of the criminal barratry
    statute, Penal Code section 38.12, alleged by the Kuboshes as RICO predicate acts
    against the defendants, including Sullo and Zimmerman, in the underlying suit are
    not the same as the violations of the civil barratry claims brought against the
    Kuboshes by the Carter parties under sections (c), (d), and (e) of the then-newly-
    enacted Texas civil barratry statute, Government Code section 82.0651. Under the
    plain language of section 82.0651, each of the civil barratry actions brought by the
    Carter parties against the Kuboshes could only have been brought by a person
    “solicited by conduct [of the Kuboshes] violating Section 38.12(a) or (b), Penal
    35
    Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct.” See
    TEX. GOV’T CODE ANN. § 82.0651(c). And, in addition, these civil barratry claims
    could have been brought and maintained on behalf of the Carter parties by the Sullo
    firm and Zimmerman only if the Carter parties did not subsequently “enter into a
    contract [with the alleged offender, the Kuboshes] as a result of [the Kuboshes’]
    conduct” in improperly soliciting their business. 
    Id. The Carter
    parties did not enter
    into contracts with the Kuboshes for legal or bail bond services. Therefore, the civil
    barratry statute applies to the Kuboshes’ allegedly barratrous actions.
    Conversely, the Kuboshes’ RICO claim against Sullo and Zimmerman is
    based on Sullo and Zimmerman and the other defendants’ actions in allegedly
    manufacturing the barratry claims brought by the Carter parties against the Kuboshes
    after soliciting the Carter parties to create them, and then representing the Carter
    parties in pursuing those claims in the solicited litigation. These actions are all
    represented by the Kuboshes as acts of criminal barratry in violation of Penal Code
    section 38.12(a) and (b) and, because of the use of phones and other electronic
    communications in soliciting and maintaining allegedly barratrous litigation, as
    RICO predicate acts.
    36
    b.     Whether the TCPA movants have shown that their actions,
    represented by the Kuboshes as RICO predicate acts, are
    protected communications
    In their amended counterpetition and third-party petition, the Kuboshes
    accuse Sullo, Zimmerman, and the other defendants of violating Penal Code section
    38.12, the criminal barratry statute, which prohibits offering “to pay [or] give . . . to
    a prospective client money or anything of value to obtain employment as a
    professional from the prospective client” and “knowingly accept[ing] employment
    within the scope of the person’s license, registration, or certification that results from
    the solicitation of employment in violation of Subsection (a)” of section 38.12. See
    TEX. PENAL CODE ANN. § 38.12(a)(3), (b)(3). Specifically, the Kuboshes allege that,
    through Andrew Sullo’s price match program, the defendants offered to give the
    Carter parties something of value—an interest in recovering damages from the
    Kuboshes in a civil lawsuit—in order to obtain employment by the Carter parties.
    The Kuboshes contend that both the TCPA movants’ solicitation of the Carter
    parties as prospective clients and their representation of them in barratry litigation
    against the Kuboshes by use of the telephone and electronic communications are not
    constitutionally protected acts of free speech and of the right to petition, but are
    instead illegal acts of mail fraud and wire fraud in violation of both the Texas Penal
    Code and RICO, and, thus, are RICO predicate acts that are not protected by the
    TCPA. To carry their initial burden in their TCPA motion, therefore, Sullo and
    37
    Zimmerman were required to show by a preponderance of the evidence that they
    were sued solely for actions taken within “the scope of their representation of” the
    Carter parties and not for conduct outside the scope of that legal representation or
    for “conduct foreign to the duties of a lawyer,” namely barratrous activities of their
    own. See 
    Youngkin, 546 S.W.3d at 681
    .
    Zimmerman argues in support of his TCPA motion that all of the alleged
    actions that form the basis of the Kuboshes’ RICO claims against him were taken in
    his capacity as counsel for the Carter parties and are, therefore, within the scope of
    his representation of his clients and are constitutionally protected acts to which the
    TCPA applies. See 
    Youngkin, 546 S.W.3d at 681
    (setting out affirmative defense of
    attorney immunity); Cantey Hanger, LLP v. Byrd, 
    467 S.W.3d 477
    , 481 (Tex. 2015)
    (same); Alpert v. Crain, Caton & James, P.C., 
    178 S.W.3d 398
    , 406 (Tex. App.—
    Houston [1st Dist.] 2005, pet. denied) (“[A]n attorney’s conduct, even if frivolous
    or without merit, is not independently actionable if the conduct is part of the
    discharge of the lawyer’s duties in representing his or her client.”). Zimmerman
    claims that, even though the Kuboshes repeatedly label as “wrongful” and
    “fraudulent” his alleged actions that serve as the basis for the Kuboshes’ RICO
    claims against him—consulting with referring counsel, filing pleadings and
    discovery responses, asserting privileges, and using trust accounts to post bonds for
    clients—these acts are “the kind of conduct in which an attorney engages when
    38
    discharging his duties to his client.” See Cantey 
    Hanger, 467 S.W.3d at 482
    ; see also
    
    Youngkin, 546 S.W.3d at 681
    (noting that focus of inquiry is “on the kind of conduct
    at issue rather than the alleged wrongfulness of said conduct”).
    Zimmerman also argues that his conduct in sending the emails relating to
    securing the Provost Umphrey conference room for Youngblood and Nash to make
    their calls to the Kuboshes is protected by attorney immunity even though these
    actions occurred before any of the Carter parties filed suit and thus occurred outside
    the litigation context. See Troice v. Greenberg Traurig, L.L.P., 
    921 F.3d 501
    , 505–
    06 (5th Cir. 2019) (examining case law from Texas intermediate appellate courts
    applying doctrine of attorney immunity outside of litigation context, concluding that
    this application comports with purpose of doctrine to “promote loyal, faithful, and
    aggressive representation” in comprehensive manner, and holding that Texas
    Supreme Court would apply attorney immunity doctrine to conduct occurring in
    non-litigation context).
    In their TCPA motion in response to the Kuboshes’ RICO suit against them,
    Sullo and Zimmerman allege that Zimmerman’s filing of the barratry lawsuits
    against the Kuboshes on behalf of the Carter parties, his filing of amended petitions
    and discovery responses, his assertion of privilege, and his communications with
    Andrew Sullo and Gregory Sullo concerning the maintenance and status of the
    barratry lawsuits—actions central to the Kuboshes’ RICO claims, as indicated in the
    39
    Kuboshes’ pleadings—are all actions that they took in connection with the Carter
    parties’ lawsuits against the Kuboshes and are therefore acts of free speech,
    association, and the right to petition that are protected by the TCPA. See Hawxhurst
    v. Austin’s Boat Tours, 
    550 S.W.3d 220
    , 227 (Tex. App.—Austin 2018, no pet.)
    (holding that “broad definition” of “communication” under TCPA “encompasses a
    petition in a lawsuit, which is a ‘judicial proceeding’”).
    In support of their TCPA motion to dismiss the Kuboshes’ claims against
    them, Sullo and Zimmerman observe that Texas Supreme Court has held that the
    TCPA “applies to a legal action against a party that is based on, related to, or in
    response to the party’s making or submitting of a statement or document in or
    pertaining to a judicial proceeding.” See 
    Youngkin, 546 S.W.3d at 680
    ; see also
    Hersh v. Tatum, 
    526 S.W.3d 462
    , 467 (Tex. 2017) (“The basis of a legal action is
    not determined by the defendant’s admissions or denials but by the plaintiff’s
    allegations. . . . When it is clear from the plaintiff’s pleadings that the action is
    covered by the [TCPA], the defendant need show no more.”).
    Sullo and Zimmerman further point out that an attorney is immune from
    liability to nonclients for conduct within the scope of his representation of his clients.
    
    Youngkin, 546 S.W.3d at 681
    ; Cantey 
    Hanger, 467 S.W.3d at 481
    (stating that
    defense of attorney immunity stems from “the broad declaration over a century ago
    that ‘attorneys are authorized to practice their profession, to advise their clients and
    40
    interpose any defense or supposed defense, without making themselves liable for
    damages’”) (quoting Kruegel v. Murphy, 
    126 S.W. 343
    , 345 (Tex. App.—Dallas
    1910, writ ref’d)). Furthermore, they argue, the Texas Supreme Court has held:
    Put differently, an attorney may be liable to nonclients only for conduct
    outside the scope of his representation of his client or for conduct
    foreign to the duties of a lawyer. We also clarified in Cantey Hanger
    that the above inquiry correctly focuses on the kind of conduct at issue
    rather than the alleged wrongfulness of said conduct. That is, a lawyer
    is no more susceptible to liability for a given action merely because it
    is alleged to be fraudulent or otherwise wrongful.
    
    Youngkin, 546 S.W.3d at 681
    ; see Cantey 
    Hanger, 467 S.W.3d at 481
    (“Even
    conduct that is ‘wrongful in the context of the underlying suit’ is not actionable if it
    is ‘part of the discharge of the lawyer’s duties in representing his or her client.’”)
    (quoting Toles v. Toles, 
    113 S.W.3d 899
    , 910–11 (Tex. App.—Dallas 2003, no
    pet.)). They also argue that labeling an attorney’s conduct as fraudulent “does not
    and should not remove it from the scope of client representation or render it ‘foreign
    to the duties of an attorney.’” Cantey 
    Hanger, 467 S.W.3d at 483
    (quoting 
    Alpert, 178 S.W.3d at 406
    ). The attorney-immunity defense “exists to promote ‘loyal,
    faithful, and aggressive representation’ by attorneys, which it achieves, essentially,
    by removing the fear of personal liability.” 
    Youngkin, 546 S.W.3d at 682
    (quoting
    Cantey 
    Hanger, 467 S.W.3d at 481
    ).
    Sullo and Zimmerman thus argue that they have demonstrated by a
    preponderance of the evidence that the TCPA applies to the RICO claims asserted
    41
    against them. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (providing that
    party may move to dismiss legal action against him if legal action is “based on,
    relates to, or is in response to a party’s exercise of the right of free speech, right to
    petition, or right of association”); 
    Youngkin, 546 S.W.3d at 680
    –81 (holding that
    TCPA applied to nonclient’s claims against attorney because attorney’s alleged
    liability “stem[med] from his dictation of the Rule 11 agreement into the court record
    during trial,” attorney’s statement was made in judicial proceeding, and claim thus
    implicated attorney’s right to petition); James v. Calkins, 
    446 S.W.3d 135
    , 147–48
    (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding that TCPA applied to
    plaintiff’s fraud and barratry claims against defendant and her attorneys because
    claims were based on defendant and attorneys’ assertion that they represented ward
    in pleadings filed in lawsuits and plaintiff’s fraudulent lien claim was based on lis
    pendens defendant had filed in another proceeding); see also River Plantation Cmty.
    Improvement Ass’n v. River Plantation Props., LLC, No. 09-17-00451-CV, 
    2018 WL 4120252
    , at *4 (Tex. App.—Beaumont Aug. 30, 2018, no pet.) (mem. op.)
    (“The TCPA creates a safeguard to protect individuals who are in litigation from
    retaliation based on the individual’s filing of a petition with a court.”).
    Assuming without deciding that Sullo and Zimmerman have borne their
    burden of showing that the communications for which they were sued by the
    Kuboshes were lawful and were made in connection with a matter of public concern
    42
    and, therefore, fall within the scope of the TCPA, the burden shifted to the Kuboshes
    to make a prima facie case on each essential element of their RICO claims against
    Sullo and Zimmerman. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)
    (providing that if TCPA movant meets its initial burden to establish applicability of
    TCPA, burden shifts to nonmoving party—party bringing underlying legal action—
    to establish by clear and specific evidence prima facie case against TCPA movant
    for each essential element of claim in question); 
    Youngkin, 546 S.W.3d at 679
    . We
    therefore turn to whether the Kuboshes have done so.
    3.     The Kuboshes’ Burden as TCPA Non-Movants to Make a Prima
    Facie Case Against Sullo and Zimmerman
    To establish a prima facie case for their RICO claims against Sullo and
    Zimmerman, the Kuboshes were required to produce evidence legally sufficient to
    establish these claims as factually true if not countered; that is, they were required
    to support their RICO claims with “the minimum quantum of evidence necessary to
    support a rational inference that the allegation of fact is true.” S & S Emergency
    Training 
    Sols., 564 S.W.3d at 847
    (quoting In re 
    Lipsky, 460 S.W.3d at 590
    ). If the
    party bringing the underlying action establishes a prima facie case on each element
    of its claim against the TCPA movant, the burden shifts back to the movant to
    establish by a preponderance of the evidence each essential element of a valid
    defense to the nonmovant’s claim. 
    Youngkin, 546 S.W.3d at 679
    –80; see TEX. CIV.
    PRAC. & REM. CODE ANN. § 27.005(d); 
    ExxonMobil, 512 S.W.3d at 899
    .
    43
    The Kuboshes alleged that Sullo and Zimmerman violated the following
    provision of RICO:
    It shall be unlawful for any person employed by or associated with any
    enterprise engaged in, or the activities of which affect, interstate or
    foreign commerce, to conduct or participate, directly or indirectly, in
    the conduct of such enterprise’s affairs through a pattern of racketeering
    activity or collection of unlawful debt.
    18 U.S.C. § 1962(c). The different subsections of section 1962 have three common
    elements that a plaintiff must demonstrate to establish civil RICO liability: (1) a
    person who engages in (2) a pattern of racketeering activity, (3) connected to the
    acquisition, establishment, conduct, or control of an enterprise. Snow Ingredients,
    Inc. v. SnoWizard, Inc., 
    833 F.3d 512
    , 523–24 (5th Cir. 2016); Abraham v. Singh,
    
    480 F.3d 351
    , 355 (5th Cir. 2007). “A pattern of racketeering activity consists of two
    or more predicate criminal acts that are (1) related and (2) amount to or pose a threat
    of continued criminal activity.” Snow 
    Ingredients, 833 F.3d at 524
    (quoting St.
    Germain v. Howard, 
    556 F.3d 261
    , 263 (5th Cir. 2009)); 
    Abraham, 480 F.3d at 355
    .
    The predicate criminal acts can be violations of either state or federal law. Snow
    
    Ingredients, 833 F.3d at 524
    . “An enterprise is a group of persons or entities
    associating together for the common purpose of engaging in a course of conduct.”
    Whelan v. Winchester Prod. Co., 
    319 F.3d 225
    , 229 (5th Cir. 2003).
    The Kuboshes also alleged that Sullo and Zimmerman—along with Andrew
    Sullo, Sullo & Sullo, and the Carter parties—conspired to violate section 1962(c).
    44
    RICO “criminalizes conspiracy to violate any of its substantive provisions.” United
    States v. Delgado, 
    401 F.3d 290
    , 296 (5th Cir. 2005); see 18 U.S.C. § 1962(d) (“It
    shall be unlawful for any person to conspire to violate any of the provisions of
    Subsection (a), (b), (c) of this section.”). To prove a RICO conspiracy, the plaintiff
    must establish (1) that two or more people agreed to commit a substantive RICO
    offense and (2) that the defendant knew of and agreed to the overall objective of the
    RICO offense. 
    Delgado, 401 F.3d at 296
    . Under section 1962(d), there is no
    requirement that the conspirator “have committed or agreed to commit the two
    predicate acts”; instead, the conspirator “need only have known of and agreed to the
    overall objective of the RICO offense.” 
    Id. Section 1961
    defines “racketeering activity” and lists a number of criminal
    offenses that can constitute racketeering activity, including mail fraud and wire
    fraud. See 18 U.S.C. § 1961(1)(B). The United States Code defines mail fraud as
    follows:
    Whoever, having devised or intending to devise any scheme or artifice
    to defraud, or for obtaining money or property by means of false or
    fraudulent pretenses, representations, or promises, or to sell, dispose of,
    loan, exchange, alter, give away, distribute, supply, or furnish or
    procure for unlawful use any counterfeit or spurious coin, obligation,
    security, or other article, or anything represented to be or intimated or
    held out to be such counterfeit or spurious article, for the purpose of
    executing such scheme or artifice or attempting so to do, places in any
    post office or authorized depository for mail matter, any matter or thing
    whatever to be sent or delivered by the Postal Service, or deposits or
    causes to be deposited any matter or thing whatever to be sent or
    delivered by any private or commercial interstate carrier, or takes or
    45
    receives therefrom, any such matter or thing, or knowingly causes to be
    delivered by mail or such carrier according to the direction thereon, or
    at the place at which it is directed to be delivered by the person to whom
    it is addressed, any such matter or thing, shall be fined under this title
    or imprisoned not more than 20 years, or both. . . .
    
    Id. § 1341;
    United States v. Whitfield, 
    590 F.3d 325
    , 354 (5th Cir. 2009) (“The mail
    fraud statute applies to anyone who ‘knowingly causes to be delivered by mail’
    anything ‘for the purpose of executing’ ‘any scheme or artifice to defraud.’”)
    (citation omitted). The United States Code defines wire fraud as follows:
    Whoever, having devised or intending to devise any scheme or artifice
    to defraud, or for obtaining money or property by means of false or
    fraudulent pretenses, representations, or promises, transmits or causes
    to be transmitted by means of wire, radio, or television communication
    in interstate or foreign commerce, any writings, signs, signals, pictures,
    or sounds for the purpose of executing such scheme or artifice, shall be
    fined under this title or imprisoned not more than 20 years, or both.
    18 U.S.C. § 1343; United States v. Stalnaker, 
    571 F.3d 428
    , 436 (5th Cir. 2009)
    (“Wire fraud is a specific-intent crime requiring proof that the ‘defendant knew the
    scheme involved false representations,’ which related to material information.”)
    (quoting United States v. Nguyen, 
    504 F.3d 561
    , 568 (5th Cir. 2007)).
    The Texas Supreme Court has consistently pointed out that while attorney
    immunity is broad, “it is not limitless.” 
    Youngkin, 546 S.W.3d at 682
    . Attorneys are
    not “insulated from all liability to nonclients for all wrongdoing in the name of a
    client.” 
    Id. Specifically, attorneys
    are not shielded from liability to nonclients for
    their actions when those actions “do not qualify as ‘the kind of conduct in which an
    46
    attorney engages when discharging his duties to his client.’” Cantey 
    Hanger, 467 S.W.3d at 482
    .
    The court has identified “several nonexhaustive examples of conduct that may
    fall outside the reach of the attorney-immunity defense,” including the attorney’s
    participating in a fraudulent business scheme with a client, knowingly assisting a
    client with a fraudulent transfer to avoid paying a judgment, stealing of goods or
    services on the client’s behalf, and assaulting opposing counsel during trial.
    
    Youngkin, 546 S.W.3d at 682
    –83; Cantey 
    Hanger, 467 S.W.3d at 482
    –83. Finally,
    the supreme court has specified that while “[f]raud is not an exception to attorney-
    immunity,” the attorney-immunity defense “does not extend to fraudulent conduct
    that is outside the scope of an attorney’s legal representation of his client, just as it
    does not extend to other wrongful conduct outside the scope of representation.”
    Cantey 
    Hanger, 467 S.W.3d at 484
    ; see also 
    Troice, 921 F.3d at 507
    (“We conclude
    that criminal conduct [by an attorney] does not automatically negate immunity, but
    in the usual case it will be outside the scope of representation.”).
    Thus, the focus of the inquiry into whether the attorney-immunity defense
    applies is on “the type of conduct at issue and the existence of an attorney-client
    relationship at the time.” 
    Youngkin, 546 S.W.3d at 683
    ; see also 
    Troice, 921 F.3d at 506
    (“When Texas courts address criminal behavior in the immunity
    47
    analysis . . . their framework remains whether that behavior was in the scope of
    representation and not whether it was criminal.”).
    Unlike those cases in which an attorney’s actions alleged to be within the
    scope of the TCPA were held to be constitutionally protected activities, the
    Kuboshes alleged that Sullo and Zimmerman either took actions outside the scope
    of representation of their existing clients in furtherance of an illegal scheme “to
    pay[], give[], or advance[] . . . to a prospective client money or [some]thing of value
    to obtain employment as a professional from the prospective client” or “knowingly
    accept[ed] employment within the scope of [their] license, registration, or
    certification that result[ed] from the solicitation of employment in violation of [Penal
    Code] Subsection [38.12](a).” See TEX. PENAL CODE ANN. § 38.12(a)(3), (b)(3).
    The Kuboshes pleaded their claims against Sullo and Zimmerman clearly and
    specifically and supported them by evidence of the actions taken, which they allege
    were unlawful. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(c) (setting out
    prima facie case requirement), 27.006(a) (requiring court, in determining whether to
    dismiss legal action under TCPA, to consider “pleadings and supporting and
    opposing affidavits stating the facts on which the liability or defense is based”).
    Specifically, the Kuboshes produced evidence showing that none of the Carter
    parties’ suits were filed until after each individual plaintiff had agreed in writing to
    participate in the price match program and to call Kubosh Bail Bonding expecting
    48
    that they would likely be transferred to the Kubosh Law Office. The record includes
    evidence of the “Disclosure & Agreement” forms setting out the price match
    program that each of the Carter parties signed before calling the Kuboshes,
    instruction sheets informing the Carter parties what to ask during their calls, form
    affidavits completed by each of the Carter parties after their calls, and attorney-client
    agreements signed by each of the Carter parties and Andrew Sullo. The record also
    includes evidence—in the form of emails—that Zimmerman was involved in setting
    up the conference room in Beaumont where Youngblood and Nash called the
    Kuboshes and evidence that Gregory Sullo participated in email exchanges
    concerning the suits against the Kuboshes.
    Thus, the Kuboshes pleaded that Sullo and Zimmerman committed violations
    of law that clearly and specifically bring their actions within the scope of the criminal
    barratry statute, Penal Code section 38.12, Rule 7.03 of the Disciplinary Rules of
    Professional Conduct, and 18 U.S.C. sections 1341 and 1343, prohibiting mail and
    wire fraud, predicate acts under RICO. See, e.g., 
    Whitfield, 590 F.3d at 354
    (“The
    mail fraud statute applies to anyone who ‘knowingly causes to be delivered by mail’
    anything ‘for the purpose of executing’ ‘any scheme or artifice to defraud.’”);
    
    Stalnaker, 571 F.3d at 436
    (“Wire fraud is a specific-intent crime requiring proof
    that the ‘defendant knew the scheme involved false representations,’ which related
    to material information.”) (citation omitted); see also Snow 
    Ingredients, 833 F.3d at 49
    523–24 (holding that necessary element of civil RICO claim is “pattern of
    racketeering activity,” which consists of “two or more predicate criminal acts that
    are (1) related and (2) amount to or pose a threat of continued criminal activity,” and
    that predicate criminal acts can be violations of state or federal law). And they
    supported their claims with evidence stating the facts on which their RICO claims
    are based. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(c), 27.006(a).
    Accordingly, we hold that the Kuboshes established a prima facie case against
    Sullo and Zimmerman by “clear and specific evidence,” satisfying their burden of
    proof necessary to avoid dismissal under the TCPA. See S & S Emergency Training
    
    Sols., 564 S.W.3d at 847
    ; In re 
    Lipsky, 460 S.W.3d at 590
    –91. That is, they
    referenced evidence that is legally sufficient to establish their claims as factually true
    if not countered. See S & S Emergency Training 
    Sols., 564 S.W.3d at 847
    ; In re
    
    Lipsky, 460 S.W.3d at 590
    .
    4.     Sullo and Zimmerman’s Limitations Defense to the Kuboshes’
    RICO Claims
    Because the Kuboshes established a prima facie case on each element of the
    underlying RICO claims upon which Sullo and Zimmerman sought dismissal, the
    burden shifted back to Sullo and Zimmerman to establish by a preponderance of the
    evidence each essential element of a valid defense to the RICO claims. See TEX. CIV.
    PRAC. & REM. CODE ANN. § 27.005(d); 
    Youngkin, 546 S.W.3d at 679
    –80;
    
    ExxonMobil, 512 S.W.3d at 899
    . We look to the “pleadings and supporting and
    50
    opposing affidavits stating the facts on which the . . . defense is based,” see TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.006(a), and we conduct “a holistic review of the
    pleadings.” 
    Adams, 547 S.W.3d at 897
    .
    Here, Sullo and Zimmerman argue that the Kuboshes’ RICO claims against
    them should be dismissed because the statute of limitations expired before the claims
    were brought against them, providing a complete defense to those claims. The
    Kuboshes respond that their evidence of Sullo’s and Zimmerman’s actions that form
    the basis of the RICO claims against these defendants was obtained only after this
    Court ordered the release of previously withheld emails on May 16, 2017.
    A RICO plaintiff must bring his claims within four years of discovering the
    harm. Rotella v. Wood, 
    528 U.S. 549
    , 553–54 (2000). Under the “injury discovery
    rule,” the Fifth Circuit has held that “a civil RICO claim accrues when the plaintiff
    discovers, or should have discovered, the injury.” Love v. Nat’l Med. Enters., 
    230 F.3d 765
    , 773 (5th Cir. 2000). The Fifth Circuit has also adopted the “separate
    accrual rule,” which, when a pattern of RICO activity causes a continuing series of
    separate injuries, allows a civil RICO claim to accrue for each injury when the
    plaintiff discovers or should have discovered that injury. 
    Id. at 773–75.
    And it has
    expressly rejected the “fraud discovery rule,” under which a RICO cause of action
    accrues when the plaintiff becomes aware of a fraud; it has held, instead, that a RICO
    cause of action against a defendant does not accrue under the injury-discovery rule
    51
    until the plaintiff knows or should have known “that it suffered an injury caused by
    that allegedly fraudulent conduct.” 
    Id. at 777.
    Moreover, under the doctrine of
    fraudulent concealment, the limitations period for a RICO claim is tolled until the
    plaintiff discovers, or with reasonable diligence should have discovered, the
    concealed fraud. 
    Id. at 779
    (quoting Klehr v. A.O. Smith Corp., 
    521 U.S. 179
    , 184
    (1997)). All of these doctrines—the discovery rule, the accrual rule, and the
    fraudulent concealment rule—apply in this case.
    The Kuboshes contend that they did not realize until the filing of the Nash
    petition in October 2014 that third-party defendant Andrew Sullo had concealed a
    reserve of recordings to use against the Kuboshes in the Carter parties’ suit against
    them and that only then did they realize the nature of the RICO injury they had
    suffered. The emails show the nature of Zimmerman’s involvement, and the filing
    of the Nash petition revealed that there were recordings of the phone calls that the
    Kuboshes alleged constituted RICO predicate acts. The Kuboshes further argue that
    only through the privilege log produced in this case did they discover that Gregory
    Sullo was involved in the planning and execution of the “price match scheme,”
    which the Kuboshes allege is unlawful under RICO. They contend that the third-
    party defendants actively worked to conceal the facts pertinent to their RICO injury
    and that they required court intervention to secure the evidence needed to establish
    the allegedly unlawful scheme.
    52
    We conclude that Sullo and Zimmerman have failed to establish their
    limitations defense by a preponderance of the evidence. Accordingly, we hold that
    they are not entitled to dismissal of the Kuboshes’ RICO claims against them on
    limitations grounds.
    We hold that the Kuboshes’ suit under RICO is not subject to dismissal under
    the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003, 27.005; see also 
    id. § 27.002
    (“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.”). Therefore, the trial court did not err by denying Sullo’s and
    Zimmerman’s motions to dismiss the Kuboshes’ RICO claims against them under
    the TCPA.5
    5
    The Kuboshes also argue that their RICO claims against Sullo and Zimmerman fall
    within the commercial speech exemption and, therefore, the TCPA is not applicable
    to their claims. The TCPA expressly provides that, even if the plaintiff’s claim is
    based on, related to, or in response to the defendant’s exercise of his right of freedom
    of speech, right to petition, or right of association, the Act does not apply to certain
    situations. One of these situations to which the TCPA does not apply is a legal action
    “brought against a person primarily engaged in the business of selling or leasing
    goods or services, if the statement or conduct arises out of the sale or lease of goods,
    services . . . or a commercial transaction in which the intended audience is an actual
    or potential buyer or customer,” known as the commercial speech exemption. TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.010(b). We find it unnecessary to reach this
    argument.
    53
    We overrule Sullo’s and Zimmerman’s first issue.6
    C.     The Kuboshes’ Motion to Dismiss the Carter Parties’ Claims Against
    Them
    1.     The Kuboshes’ First Amendment Claim Challenging                             the
    Constitutionality of Government Code Section 82.0651
    In the underlying litigation, the Kuboshes have asserted a First Amendment
    claim challenging the constitutionality of Government Code section 82.0651 as
    applied in the Carter parties’ suits.
    Recognizing the public importance to the State of Texas of the construction
    and application of the barratry laws, especially then-recently-enacted section
    82.0651, as a matter of public concern, the State intervened as of right in this
    litigation. It filed a brief in this appeal in which it states the following:
    This litigation has been pending, in various forms and with various
    parties, since 2013. But, crucially, the district court has not yet decided
    the fundamental issue in the case: whether lawyer Paul Kubosh/Kubosh
    6
    Sullo and Zimmerman also seek their attorney’s fees and costs pursuant to section
    27.009(a) of the TCPA. Under the TCPA, if the court orders dismissal of a legal
    action, the court shall award to the moving party (1) court costs, reasonable
    attorney’s fees, and other expenses incurred in defending against the legal action as
    justice and equity may require, and (2) sanctions against the party who brought the
    legal action as the court determines sufficient to deter the party from bringing
    similar actions described in the TCPA. TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.009(a); Youngkin v. Hines, 
    546 S.W.3d 675
    , 683 (Tex. 2018); see Sullivan v.
    Abraham, 
    488 S.W.3d 294
    , 299 (Tex. 2016) (holding that TCPA requires award of
    “reasonable attorney’s fees” to successful movant and stating that “reasonable”
    attorney’s fee is “one that is not excessive or extreme, but rather moderate or fair”).
    Because we affirm the trial court’s order denying Sullo and Zimmermans’ motions
    to dismiss the Kuboshes’ claims against them under the TCPA, we overrule their
    issue seeking attorney’s fees and expenses as they are not a prevailing party on their
    motions.
    54
    Law Office and bail bondsman Felix Michael Kubosh/Kubosh Bonding
    (the Kuboshes) violated the Texas civil barratry statute, TEX. GOV’T
    CODE § 82.0651(c). Until the district court has made that
    determination, there cannot and should not be a resolution of the
    Kuboshes’ as-applied First Amendment challenge. . . . The Court
    should decline the Kuboshes’ invitation to reach the constitutionality of
    the Texas civil barratry statute.
    (Emphasis added.)
    We agree with the State’s observation that “the district court has not yet
    decided the fundamental issue in the case”—whether the Kuboshes violated the civil
    barratry statute, Government Code section 82.0651—and therefore that the
    Kuboshes’ as-applied First Amendment challenge should not be resolved at this
    time. We further observe that, as stated above, the district court has also not yet
    decided whether the challenged actions of Sullo, Zimmerman, and the other
    defendants in the Kuboshes’ RICO suit are lawful acts of representation of clients or
    unlawful acts that violated the criminal barratry statute, section 38.12 of the Penal
    Code. And from that observation we draw the reasonable inference that it is just as
    premature for us to decide in this TCPA action whether the TCPA movants, Sullo
    and Zimmerman, were exercising their First Amendment rights to practice the legal
    profession in representing their clients in the barratry suits against the Kuboshes, or
    were participating in an illegal scheme to enrich themselves by soliciting clients to
    manufacture civil barratry claims for their own pecuniary gain and then representing
    those persons as plaintiffs in their barratry suits against the Kuboshes.
    55
    2.    Analysis of the Kuboshes’ TCPA Cross-Motion
    We turn now to the merits of the Kuboshes’ cross-motion to dismiss the Carter
    parties’ civil barratry claims against them pursuant to the TCPA. We first address
    whether the Kuboshes’ TCPA motion was timely.
    This Court has held that “[i]t is well-settled that the purpose of the TCPA is
    ‘to allow a defendant early in the lawsuit to dismiss claims that seek to inhibit a
    defendant’s constitutional rights to petition, speak freely, associate freely, and
    participate in government as permitted by law.’” Jordan v. Hall, 
    510 S.W.3d 194
    ,
    198 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting Paulsen v. Yarrell, 
    455 S.W.3d 192
    , 197 (Tex. App.—Houston [1st Dist.] 2014, no pet.)); see Miller
    Weisbrod, L.L.P. v. Llamas-Soforo, 
    511 S.W.3d 181
    , 193 (Tex. App.—El Paso 2014,
    no pet.) (stating that Legislature intended to effectuate purpose of TCPA “by
    ensuring that courts will dismiss SLAPP suits quickly and without the need for
    prolonged and costly proceedings”). Civil Practice and Remedies Code section
    27.003 provides that a TCPA motion to dismiss must be filed “not later than the 60th
    day after the date of service of the legal action.” TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.003(b); Grant v. Pivot Tech. Sols., Ltd., 
    556 S.W.3d 865
    , 885 (Tex. App.—
    Austin 2018, pet. filed); Bacharach v. Garcia, 
    485 S.W.3d 600
    , 602 (Tex. App.—
    Houston [14th Dist.] 2016, no pet.). The TCPA defines “legal action” as “a lawsuit,
    cause of action, petition, complaint, cross-claim, or counterclaim or any other
    56
    judicial pleading or filing that requests legal or equitable relief.” TEX. CIV. PRAC. &
    REM. CODE ANN. § 27.001(6). The trial court may extend the time to file a motion
    to dismiss “on a showing of good cause.”7 
    Id. § 27.003(b);
    Grant, 556 S.W.3d at
    885
    ; 
    Jordan, 510 S.W.3d at 197
    .
    Here, Youngblood originally filed suit against the Kuboshes for violation of
    the civil barratry statute in Jefferson County on April 5, 2013. Carter filed suit
    against the Kuboshes in Harris County on August 28, 2013, and Nash filed suit
    against the Kuboshes in Jefferson County on October 1, 2014. Although the
    plaintiffs have amended their petition several times during the course of this
    litigation, the only cause of action they have ever asserted against the Kuboshes is a
    claim for violation of the civil barratry statute. The Kuboshes did not file their TCPA
    motion to dismiss the civil barratry claims against them until March 29, 2018, nearly
    five years after Youngblood first filed suit.
    The Kuboshes acknowledge that their TCPA motion to dismiss was not filed
    within sixty days after the date of service of the legal action against, and, thus, that
    7
    The TCPA does not define “good cause.” In other contexts, including determining
    whether good cause exists to allow the withdrawal of deemed admissions and to
    allow the late-filing of a summary judgment response, the Texas Supreme Court has
    held that good cause is “established by showing the failure involved was an accident
    or mistake, not intentional or the result of conscious indifference.” See Wheeler v.
    Green, 
    157 S.W.3d 439
    , 442 (Tex. 2005) (per curiam) (withdrawal of deemed
    admissions); Carpenter v. Cimarron Hydrocarbons Corp., 
    98 S.W.3d 682
    , 688
    (Tex. 2002) (late-filing of summary judgment response).
    57
    their motion to dismiss was untimely. They argue, however, that “good cause” exists
    for their late filing of the motion to dismiss and that the trial court erred by denying
    their motion on this basis. Specifically, the Kuboshes argue that
    It was only well after the deadline to file a TCPA motion to dismiss that
    the true factual background emerged in this case, and that the
    “commercial speech” exception could be seen not to apply, that
    discovery revealed that the evidence showed that, in fact, the Sullo
    Plaintiffs [e.g., Youngblood, Carter, Nash] were acting on behalf of
    Andrew Sullo and could not be actual or potential customers of the
    Kuboshes in connection with the communications at issue.
    The Kuboshes contend that, due to the actions of Andrew Sullo and Zimmerman,
    they were unable to determine the true nature of the case against them, justifying the
    late filing of their TCPA motion. We disagree.
    The record reflects that on October 21, 2014, approximately three weeks after
    Nash filed the third and last suit against the Kuboshes, the Kuboshes filed their
    second amended answer and counterpetition in the Carter suit. This pleading
    contains the Kuboshes’ first allegations that the plaintiffs’ calls to their office were
    made for an improper purpose. Specifically, the Kuboshes alleged:
    [Andrew] Sullo orchestrated each and every Carter Plaintiff’s and
    another 64 barratrously-solicited strangers’ calls from Sullo’s own
    [Sullo & Sullo] office (as well as other locations) to Kubosh Bonding
    using phone numbers Sullo provided each Carter Plaintiff, along with
    pretextual “price match” scripts, and previously-prepared form
    affidavit instructions listing Kubosh Law as the intended ultimate
    recipient of each Sullo-instructed call.
    Sullo masterminded an attorney-crafted scheme to perpetrate a Fraud
    on the Court, defined in BLACK’S LAW DICTIONARY and case law as “a
    58
    lawyer’s or party’s misconduct so serious that it undermines or is
    intended to undermine the integrity of the proceeding” such as “bribery
    of a juror and introduction of fabricated evidence.” Sullo surreptitiously
    recorded every Carter Plaintiff’s call. Sullo then filed this suit to
    retaliate against the Kubosh Brothers . . . .
    ....
    This case does not involve barratry by Kubosh Bonding or Kubosh Law
    but, instead, a Fraud on the Court orchestrated by Sullo and [Sullo &
    Sullo] using each Carter, Youngblood and Nash Plaintiff, 64 people
    who called the Kubosh Brothers but remain “plaintiffs-in-waiting,”
    aided and abetted by Zimmerman and Zimmerman Axelrad. This Court
    should bring an end to the first phase of this lawsuit by dismissing, with
    prejudice, the Carter Plaintiffs’ Fraud on the Court claims.
    The Kuboshes then, in that same pleading, raised an as-applied challenge to the
    constitutionality of the civil barratry statute and asserted claims against the Carter
    parties, Andrew Sullo, and Sullo & Sullo, including claims for common-law fraud,
    civil conspiracy, RICO violations, and conspiracy to violate RICO.
    On January 22, 2016, in the Nash case, the Kuboshes filed a combined motion
    to transfer venue, amended answer, original counterclaim against Nash, and original
    third-party claims against Andrew Sullo, Gregory Sullo, and Sullo & Sullo, LLP.
    The Kuboshes alleged that, as of that time, “[t]he precise involvement of
    Zimmerman and Fisher in planning and executing the calls is not yet completely
    known,” but due to a privilege log, the Kuboshes were aware that Andrew “Sullo
    and Zimmerman were in email communication as early as January 27, 2012
    ‘concerning status of barratry litigation’—a little over two months following the first
    59
    and most significant spate of calls made from Sullo’s office to the Kubosh
    Defendants.” The Kuboshes also alleged, “This scenario is overwhelming evidence
    of obstruction of justice. . . . The [Carter parties] are relevant to this case only as a
    tool for the criminal enterprise of Third-Party Defendants [Andrew Sullo, Gregory
    Sullo, and Sullo & Sullo] and their confederates, Brian Zimmerman and Joe Fisher.”
    The Kuboshes again challenged the constitutionality of the civil barratry statute and
    asserted claims against the Carter parties, Andrew Sullo, Gregory Sullo, and Sullo
    & Sullo, including claims for common-law fraud, civil conspiracy, RICO violations,
    conspiracy to violate RICO, and violations of federal and state wiretapping statutes.
    The Kuboshes alleged that the Carter parties and the “Sullo Parties” “formed a RICO
    association-in-fact enterprise with common and continuing purposes, namely, to
    serve as a flexible vehicle to set up and file these in terrorem lawsuits based upon
    created facts . . . .”
    The record also reflects that while the Carter parties and Andrew Sullo have
    moved for summary judgment on the Kuboshes’ counterclaims—and received a
    favorable summary judgment ruling on the Kuboshes’ common-law fraud claims—
    the Kuboshes also moved for summary judgment on the Carter parties’ claims in
    September 2015 and again in August 2017. The Kuboshes, however, did not seek
    dismissal of the Carter parties’ claims against them under the TCPA until March
    2018, nearly five years after the filing of Youngblood’s lawsuit. By the time the
    60
    Kuboshes moved for dismissal under the TCPA, they had been asserting that the
    Carter parties’ lawsuits were a “fraud on the court” and should be dismissed due to
    Andrew Sullo’s improper conduct “orchestrating” the cases since October 2014,
    nearly three-and-a-half years before they filed their TCPA motion.
    One of the overarching purposes of the TCPA is to provide an expedited
    dismissal procedure for lawsuits that are based on, related to, or in response to the
    exercise of certain statutorily-protected rights. See, e.g., In re 
    Lipsky, 460 S.W.3d at 586
    (“The Act provides a special procedure for the expedited dismissal of such suits
    [that fall within the TCPA’s purview].”) (emphasis added); 
    Jordan, 510 S.W.3d at 198
    (noting that it is “well settled” that purpose of TCPA is to allow defendant “early
    in the lawsuit” to seek dismissal of claims that implicate certain protected rights).
    Allowing consideration of the Kuboshes’ TCPA motion in this case, filed years after
    they were served with a legal action setting out the only causes of action that have
    been asserted against them and filed after the Kuboshes have filed dispositive
    summary judgment motions on those causes of action, would frustrate the purpose
    of the TCPA and its expedited procedures. We conclude that the Kuboshes did not
    establish good cause for the late filing of their TCPA motion to dismiss. We therefore
    hold that the trial court did not err by denying the Kuboshes’ TCPA motion.8
    8
    The parties disagree regarding the appropriate standard of review for this issue. The
    Kuboshes argue that we should review this question de novo, pointing out that
    appellate courts review trial court rulings granting or denying TCPA motions to
    61
    We overrule the Kuboshes’ sole issue, and we hold that the trial court did not
    err in denying the Kuboshes’ motion to dismiss the Carter parties’ barratry suits
    against them.
    Conclusion
    We affirm the trial court’s order denying Sullo’s, Zimmerman’s, and the
    Kuboshes’ motions to dismiss under the TCPA. All other pending motions are
    dismissed as moot.
    Evelyn V. Keyes
    Justice
    Panel consists of Justices Keyes, Kelly, and Landau.
    dismiss, as well as questions of statutory construction of the TCPA, de novo. See
    Porter-Garcia v. Travis Law Firm, P.C., 
    564 S.W.3d 75
    , 83 (Tex. App.—Houston
    [1st Dist.] 2018, pet. denied). The Carter parties argue that we should review this
    issue for an abuse of discretion, pointing out that section 27.003(b) provides that the
    trial court “may extend the time to file a motion under this section on a showing of
    good cause” and that, in other contexts, courts generally review determinations of
    good cause for an abuse of discretion. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.003(b) (emphasis added); see, e.g., 
    Carpenter, 98 S.W.3d at 686
    (reviewing
    trial court’s ruling on motion for leave to file late summary judgment response for
    abuse of discretion). We need not determine which standard of review is appropriate
    for reviewing the question of whether a trial court properly determined that good
    cause did or did not exist for the late filing of a TCPA motion because, under the
    facts of this case, even under the less-deferential de novo standard of review, the
    Kuboshes have not established that good cause existed for them to file their TCPA
    motion nearly five years after the filing of the first suit asserted against them.
    62