Mike Farhat, US Global Asset Investments, LLC, John Martin Faubus, Tracy L. Trimble, Mary Martinez, Michael W. Broome, and Michael W. Broome, P.C. v. Wilson Scott, LLC D/B/A Capital Asset Resources ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00438-CV
___________________________
MIKE FARHAT, US GLOBAL ASSET INVESTMENTS, LLC, JOHN MARTIN
FAUBUS, TRACY L. TRIMBLE, MARY MARTINEZ, MICHAEL W. BROOME,
AND MICHAEL W. BROOME, P.C., Appellants
V.
WILSON SCOTT, LLC D/B/A CAPITAL ASSET RESOURCES, Appellee
On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-308014-19
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
This is an anti-SLAPP appeal. Wilson Scott, LLC d/b/a Capital Asset
Resources (CAR) sued its competitor, US Global Asset Investments, LLC; its founder
Mike Farhat; US Global employees (and former CAR employees) Tracy L. Trimble
and Mary Martinez; US Global salesperson (and former CAR salesperson) John
Martin Faubus; and attorney Michael W. Broome and Michael W. Broome, P.C.
(collectively, Broome), who had prepared documents and provided legal advice for US
Global. The defendants (here, Appellants) filed a motion to dismiss CAR’s claims
under the Texas Citizens Participation Act (TCPA), and the trial court denied the
motion. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. In four issues, Appellants
challenge the trial court’s denial of their TCPA motion (issues one and two), its failure
to exclude evidence (issue three), and its order stating that CAR “may be entitled” to
recover its attorney’s fees (issue four). Because the trial court correctly denied the
TCPA motion and we have no attorney’s fees award to review, we affirm.
Background
CAR is in the leasing business. It finds customers to lease vehicles and
equipment, and it works with financial institutions to arrange financing for those
leases. Martinez worked for CAR, as did Trimble, who served as CAR’s chief
operating officer. Faubus, acting as an independent contractor, found potential
lessees for CAR. Broome represented CAR in several litigation and business matters.
Farhat was a CAR customer who knew Trimble from her previous job with a bank.
2
Farhat established US Global on January 23, 2019. On January 31, 2019, Trimble
resigned from CAR. Martinez resigned four days later. Both went to work for US
Global, as did Faubus.
In its petition, CAR alleged that in the fall of 2018, Trimble, Martinez, and
Faubus began discussing forming their own business to compete with CAR, that they
approached Farhat as a possible source of funds, and that Broome “assist[ed] in their
plan’s implementation” without disclosing to CAR that its associates were planning a
competing business or that he had advised them about it. CAR further alleged that
Trimble, Martinez, and Faubus began to “poach” CAR’s clients while they still
worked for CAR and that, both before and after leaving CAR, they had used CAR’s
confidential information for their new business.
Based on these allegations, CAR asserted claims for breach of fiduciary duty
(against Trimble, Martinez, Faubus, and Broome); aiding, abetting, and knowingly
participating in breaches of fiduciary duty (against all Appellants); conspiracy (against
all Appellants); tortious interference with contracts, prospective contracts, and actual
and prospective business relationships (against Trimble, Martinez, Faubus, Farhat, and
US Global); conversion and unjust enrichment (against Faubus and US Global); and
breach of contract (against Faubus).
Appellants filed a joint TCPA motion to dismiss CAR’s claims, contending that
those claims were based on, related to, or were in response to their exercise of their
rights of free speech and of association. Appellants argued that CAR’s claims arose
3
from communications that were made (1) by individuals who joined together to
collectively express, promote, pursue, or defend a common interest in developing and
maintaining US Global as a successful business and as CAR’s competitor and (2) in
connection with US Global’s providing services in the marketplace, which is a matter
of public concern. CAR filed a response asserting that Appellants had failed to show
that the TCPA applied. In Appellants’ reply, they objected to evidence that CAR had
attached to its TCPA response, and they moved to strike certain affidavits.
The trial court heard the TCPA motion on October 7, 2019. On November 6,
2019, the trial court signed an order denying the motion, stating that CAR “is entitled
to recover its court costs and reasonable attorney’s fees,” and ordering CAR to submit
evidence of its fees and costs and to request a hearing. [Emphasis added.] On
November 25, the trial court signed an amended order, which changed the “is entitled
to” language in the November 6 order to “may be entitled.” See Act of May 24, 2011,
82nd Leg., R.S., ch. 341, H.B. 2973, § 2 (amended 2019) (current version at Tex. Civ.
Prac. & Rem. Code Ann. § 27.009(c))1 (providing that a trial court may award court
costs and reasonable attorney’s fees to the nonmovant if the court finds that the
TCPA motion is frivolous or solely intended to delay). The next day, Appellants filed
a notice of appeal from the trial court’s order “signed November 6, 2019 and
For ease of reference, when citing to a section of the TCPA that has been
1
amended since the filing of this suit, we initially cite the session law of the now-
amended section, but subsequent citations will simply cite to the current section
number.
4
amended November 25, 2019” and an objection to the trial court’s failure to rule on
their evidentiary objections and motion to strike.
Appellants’ Issues
I. Application of the TCPA
In their first issue, Appellants argue that the TCPA applies to this case because
CAR’s claims are based on, related to, or in response to Appellants’ exercise of their
rights of free speech and of association. Appellants had the burden to show by a
preponderance of the evidence that the TCPA applies. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(b). Appellants disputed most of the facts in CAR’s petition.
However, “[t]he basis of a legal action is not determined by the defendant’s
admissions or denials but by the plaintiff’s allegations,” and as such, the plaintiff’s
petition “is the best and all-sufficient evidence of the nature of the action.” Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat’l Bank v. Maples,
95 S.W.2d 1300, 1302 (Tex. [Comm’n App.] 1936)); see also Tex. Civ. Prac. & Rem.
Code Ann. § 27.006 (providing that the pleadings constitute evidence a trial court
must consider in ruling on a TCPA motion); Gaskamp v. WSP USA, Inc., No. 01-18-
00079-CV, 2020 WL 826729, at *16 (Tex. App.—Houston [1st Dist.] Feb. 20, 2020,
no pet. h.) (op. on reh’g en banc). We therefore begin our analysis by looking at
CAR’s pleadings.
5
A. CAR’s allegations
CAR pled the following facts. Trimble and Martinez were CAR employees.
Faubus worked for CAR as an independent contractor, but he and CAR “understood
and agreed” that he worked exclusively for CAR. All three of these defendants
developed and created “financial data/trade secrets” in the course of their work at
CAR, and CAR kept this information—including “potential lease customers, their
leasing needs, the sources of possible capital (i.e., the lenders)[,] and all information
regarding the entire leasing process”—strictly confidential.
CAR’s potential lease customers gave CAR confidential financial information,
and to protect this information, CAR requested lenders financing the leases to sign
nondisclosure agreements (NDAs). While the general elements of how to conduct an
equipment and vehicle leasing business are not trade secrets, the information CAR
kept about the identity of existing and potential lessees, the lenders who were
available to fund certain types of leases, and the lenders’ exact requirements and
financing terms is not known to the general public. Trimble, Martinez, and Faubus
were regularly given access to this confidential information. CAR had a leasing
relationship with Farhat, and as such, Farhat was in a position to see how CAR
handled its business and the safeguards that CAR required its employees and agents to
use to protect confidential data.
Trimble, Martinez, and Faubus began planning to leave CAR to work for US
Global, Farhat’s new competing business. Before they left CAR, however, as a way to
6
get a “running start” for the new business, they began using CAR’s customer base and
confidential information. They planned to make new leases to CAR’s customers and,
in some cases, replace CAR’s existing leases with new US Global leases that offered
lower rates or better terms. Appellants told other CAR employees to stall several in-
progress CAR leasing opportunities that Appellants then diverted to US Global.
During this time, Faubus, Trimble, and Martinez were actively soliciting business for
US Global using relationships and financial data developed by CAR, and Faubus did
not disclose to CAR that he was no longer acting exclusively for CAR. Appellants
also copied some of CAR’s forms for use by US Global.
Broome advised Faubus, Trimble, and Martinez about their proposed
relationship with US Global, gave them legal advice supporting a competing bid with
a customer CAR was actively negotiating with, and advised them on creating internal
“form” leases and other documents. Broome never disclosed to CAR that Broome
had advised Appellants on their competing business.
CAR further alleged that Appellants continued to use CAR’s confidential
information after Trimble, Martinez, and Faubus left CAR. For example, CAR had an
NDA with Point Bank, and Appellants used confidential customer data that CAR had
disclosed to Point Bank under that NDA. Further, on behalf of US Global, Faubus
gave lease documents to a longstanding CAR customer, W.T. Fiberlink, and he used a
CAR/W.T. Fiberlink application to apply for funding with a lender. CAR pled that as
7
a result of Appellants’ actions as alleged in the petition, CAR lost existing business
and potential business opportunities.
B. Right of association
We now turn to Appellants’ argument that CAR’s claims were based on, related
to, or in response to their exercise of the right of association. The applicable version
of the TCPA defines the “exercise of the right of association” as “a communication
between individuals who join together to collectively express, promote, pursue, or
defend common interests.” Act of May 24, 2011, 82nd Leg., R.S., ch. 341, H.B. 2973,
§ 2 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(2)). The plain meaning of the word “common” in this definition “requires
more than two tortfeasors conspiring to act tortiously for their own selfish benefit.”
Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 588 (Tex. App.—Fort Worth 2019, pet.
denied). Rather, the statute “requir[es] interests common to the public or a group.”
Id. at 575.
Here, CAR alleged that Appellants conspired to and did take its confidential
information in order to compete with CAR and that they used that information to
poach CAR’s existing and potential clients. They presumably communicated with
each other to accomplish these acts, 2 assuming that CAR’s allegations are true.
2
Not every act complained of by CAR necessarily involved communications;
for example, CAR’s petition did not allege any factual details about how Appellants
took its confidential information—whether they did so by saving electronic data to a
portable hard drive, by transmitting the information to another person, or some other
8
However, the common interest they joined together to pursue is not an interest that
the TCPA protects; the “common interest” here is, allegedly, tortfeasors breaching
fiduciary duties and working together for their own personal benefit rather than an
interest common to the public or a larger group. See id. at 575, 588.
Appellants argue that CAR’s allegations implicate two common interests: “the
business of US Global, operating as CAR’s competitor,” and the community’s interest
in a free and competitive marketplace. They assert that CAR’s claims are based on,
related to, or in response to “communications about forming US Global, providing
services to US Global, or soliciting or providing services of US Global in the broader
leasing marketplace in competition with CAR.” However, CAR did not assert claims
based on the fact that Appellants were competing with it or communicating about
competing. Its claims are based on allegations about how Appellants competed: by
breaching fiduciary duties owed to CAR and by taking or conspiring with others to
take its confidential information. The communications alleged by CAR are thus not
protected by the TCPA. 3 See id.
method. However, for purposes of our analysis, we will assume that, aside from the
breach of fiduciary duty claim against Broome, each of CAR’s claims involved
communications.
3
Appellants essentially argue that CAR’s purpose in suing them is nothing more
than an attempt to quash competition. However, regardless of CAR’s true motivation
in suing Appellants, we determine whether the TCPA applies based on CAR’s
allegations, and the factual basis pled by CAR for its claims is not communications
involving Appellants’ exercise of rights protected by the TCPA.
9
In Appellants’ reply brief, they attempt to distinguish Kawcak by noting that
“[c]ases citing Kawcak have generally held that [the] TCPA right of association does
not apply to communications between tortfeasors that misappropriate confidential
business information or implicate confidentiality agreements,” but that here, CAR’s
suing Broome with the other defendants “show[s] that the communications here are
different from Kawcak or the cases trying to draw a distinction for ‘private business’
disputes.”4 They contend that “CAR does not allege that Broome had an interest in
[US Global] or in [US Global]’s business. The only association alleged involving
Broome is that he provided services to [US Global] as its attorney and communicated
with [US Global] employee(s) providing legal advice.”5 This argument does not help
4
Appellants also attempt to distinguish Kawcak by pointing out that it involved
two tortfeasors and that this court stated in that case that “the interests of two
conspirators who join together to commit a tort do not cross the threshold of
common and thus do not bring the conspirators within the protections of the TCPA.”
Kawcak, 582 S.W.3d at 576. Appellants note that here, the claims against Appellants
extend beyond “a set of only two people.” However, Kawcak did not hold that a
group of more than two alleged tortfeasors with a common interest constitutes a
group for purposes of making their shared interest a “common interest” under the
TCPA; this court specifically stated that in that case we were not required to
determine what size group must share an interest before that interest qualifies as a
“common interest” under the TCPA. Id. We need not decide that question in this
case either. We hold merely that under the facts of this case, Appellants’ alleged
interest in committing torts to further private business interests does not qualify as a
“common interest” for purposes of the TCPA.
5
As we discuss below, we recognize that Texas law generally protects an
attorney from liability for his conduct in his representation of a client when sued by
someone other than that client. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481,
483 (Tex. 2015). However, the existence of this protection is not determinative of the
initial question of whether a claim against the attorney is based on, relates to, or arises
10
Appellants. The common interest that Appellants raised in their TCPA motion—the
purpose for which they allegedly joined together—was developing and maintaining
US Global as CAR’s competitor. CAR’s petition contains no facts or claims
indicating that Broome shared that same interest or joined them for the purpose of
promoting, pursuing, or defending it, and Appellants’ TCPA motion does not
contend that he did so. Thus, Broome’s inclusion does not make Kawcak
distinguishable; Appellants admit that Broome did not join with the other Appellants
to pursue a common interest, and, even if he had, the common interest is one that,
under Kawcak, is not protected by the TCPA. See id. at 575, 588.
C. Right of free speech
Appellants further argue under their first issue that CAR’s claims are based on,
related to, or in response to Appellants’ exercise of the right of free speech. The
applicable version of the TCPA defines the “exercise of the right of free speech” as “a
communication made in connection with a matter of public concern,” and it defines a
“matter of public concern” as including “an issue related to: (A) health or safety; (B)
environmental, economic, or community well-being; (C) the government; (D) a public
official or public figure; or (E) a good, product, or service in the marketplace.” Act of
May 24, 2011, 82nd Leg., R.S., ch. 341, H.B. 2973, § 2 (amended 2019) (current
out of the attorney’s exercise of the rights protected by the TCPA. Further, our
acknowledgment of the existence of this protection is not a comment on whether it
could apply to a case in which a client’s suit against its former attorney is based not on
communications the attorney has with another client but on the failure to disclose a
conflict of interest.
11
version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3), (7)). Citing the Texas
Supreme Court’s opinion in Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
Appellants assert that CAR’s claims are based on, related to, or in response to their
communications with each other about forming and developing US Global and their
communications with other businesses, including any potential customers and lenders
in the equipment-leasing marketplace, and that these communications “clearly ‘have
some relevance to a public audience of potential buyers or sellers’ or at least ‘could
reasonably be characterized as involving public concerns.’” 591 S.W.3d 127, 130, 136.
Appellants argue that business associates have a right to communicate amongst
themselves about customers and that individuals generally have the right to compete
with former employers, see Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 510 (Tex.
App.—Houston [1st Dist.] 2003, no pet.), and they assert that the communications on
which CAR’s claims are based meet two different parts of the definition of “matter of
public concern”: relating to economic and community interests (by promoting
competition) and relating to a service in the marketplace.
Turning first to CAR’s claims against Broome, we conclude that they do not
fall within the TCPA’s protection of free speech. Appellants argue that “[t]he
foundation of [CAR’s] complaint against Broome is not based on his advice to CAR,
but on his association and provision of legal advice to CAR’s competitor, i.e.[,]
services provided in the public marketplace to CAR’s competitor.” CAR’s claims
against Broome, however, are solely based on his alleged nondisclosure: CAR alleged
12
that Broome had a fiduciary duty to disclose any conflicts of interest and that, in
violation of that duty, Broome never told CAR that he was representing the other
Appellants “with respect to their efforts to leave CAR, create a company to compete
with CAR, take confidential information and customer financial data with them, etc.,
and [his] decisions to provide them with legal advice in their joint and mutual efforts
to compete against CAR, generally.” Claims that are based on, related to, or in
response to the absence of communication do not fall within the TCPA. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(1) (defining “communication” under the TCPA as
the making or submitting of a statement or document); Ray v. Fikes, No. 02-19-00232-
CV, 2019 WL 6606170, at *3 (Tex. App.—Fort Worth Dec. 5, 2019, pet. denied)
(mem. op.) (stating that the definition of “communication” in the TCPA does not
include the failure to communicate, and thus plaintiff’s claims against her former
attorney for failing to file a claim within the limitations period did not fall within the
TCPA).
CAR also included Broome in its conspiracy claims, asserting that he
participated in a conspiracy with the other Appellants to breach his fiduciary duty to
CAR. Conspiracies generally involve communications among the conspirators. See
Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave, 590 S.W.3d 647,
651 n.9 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). Thus, CAR impliedly
alleged that Broome, in conspiring with the other Appellants to breach his fiduciary
duty to CAR, communicated something to the other Appellants. However, CAR did
13
not describe or reference any communications between Broome and the other
Appellants related to or in furtherance of this particular conspiracy, and we therefore
cannot say that these communications, whatever they were, were on a matter of public
concern. While CAR did plead some specific communications by Broome—it alleged
that he provided documents to the other Appellants, and it stated that it “reasonably
believes” that Broome advised Appellants that they “were ‘entirely free’ to do what
they wanted in terms of future competition with CAR”—those communications are
unrelated to Broome’s alleged nondisclosure in breach of his fiduciary duty to CAR or
to CAR’s claim of a conspiracy to breach Broome’s fiduciary duty by not disclosing
the other Appellants’ actions. We therefore cannot say that CAR based its conspiracy
claim against Broome on communications involving a matter of public concern.6
6
Our holding that the TCPA does not apply to CAR’s claims against Broome is
not a comment on the ultimate viability of these claims. Further, while the TCPA
does not apply to the claims against Broome here, we do not hold that an attorney
may never obtain dismissal of a claim under the TCPA. In order to give attorneys
latitude to practice their profession, Texas law provides the affirmative defense of
attorney immunity, which generally protects attorneys from liability to nonclients for
an attorney’s acts and communications in representation of a client. Cantey Hanger,
467 S.W.3d at 481, 483. As CAR acknowledged in its response to the TCPA motion,
the TCPA does not abrogate any defense, immunity, or privilege under the law. Thus,
even if the TCPA applies to a claim against an attorney and the plaintiff makes a
prima facie case for the claim, the TCPA would not abrogate the attorney-immunity
defense—if, that is, that defense applies under the facts of the case. See, e.g., Rogers v.
Walker, No. 09-15-00489-CV, 2017 WL 3298228, at *5 (Tex. App.—Beaumont Aug.
3, 2017, pet. denied) (mem. op.) (applying attorney immunity in the context of estate
administration and disagreeing with the appellant’s argument that the doctrine applies
only to an attorney’s conduct in the litigation context); Santiago v. Mackie Wolf Zientz &
Mann, P.C., No. 05-16-00394-CV, 2017 WL 944027, at *4 (Tex. App.—Dallas Mar.
10, 2017, no pet.) (mem. op.) (citing Cantey Hanger to reject the argument that attorney
14
As for the claims against the remaining Appellants, two cases guide our
analysis. First, in Creative Oil & Gas, the Texas Supreme Court construed the TCPA’s
definition of the phrase “matter of public concern” and held that “the definition
confirms that the right of free speech involves communications connected to ‘a
matter of public concern’” and that the phrase does not commonly refer to “purely
private matters.” 591 S.W.3d at 134. Thus, although the definition includes issues
related to economic well-being, that a claim that affects the economic interest of the
parties does not by itself make a claim one that related to economic well-being so as
to qualify as a matter of public concern under the TCPA. See id. at 137. The court
concluded that “[a] private contract dispute affecting only the fortunes of the private
parties involved is simply not a ‘matter of public concern’ under any tenable
understanding of those words.” Id.
immunity applies only to attorneys involved in litigation); Farkas v. Wells Fargo Bank,
N.A., No. 03-14-00716-CV, 2016 WL 7187476, at *8 (Tex. App.—Austin Dec. 8,
2016, no pet.) (mem. op.); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,
408 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (discussing immunity in
context of plaintiff’s claims against alleged tortfeasor’s attorney and holding that the
attorney had immunity for “acts taken and communications made to facilitate the
rendition of legal services” to the attorney’s client when the attorney had no legal
privity with the plaintiff and no independent duty to the plaintiff together with the
plaintiff’s justifiable reliance on the attorney’s act or representation); see also Troice v.
Greenberg Traurig, L.L.P., 921 F.3d 501, 505–06 (5th Cir. 2019) (concluding that the
Texas Supreme Court would apply attorney immunity in a non-litigation context);
LJH, Ltd. v. Jaffe, No. 4:15-CV-00639, 2017 WL 447572, at *2–3 (E.D. Tex. Feb. 2,
2017) (applying attorney immunity to conduct during sale of business). But see NFTD,
LLC v. Haynes & Boone, LLP, 591 S.W.3d 766, 776 (Tex. App.—Houston [14th Dist.]
2019, pet. filed). To be clear, we make no determination whether the attorney-
immunity defense applies here.
15
Second, the Dallas court of appeals recently applied similar reasoning in
analyzing whether the TCPA applied to tort claims. In Goldberg v. EMR (USA
Holdings) Inc., the plaintiffs alleged that the defendants had used the plaintiffs’
confidential information in e-mails sent by the defendants to purchasers and suppliers.
594 S.W.3d 818, 826 (Tex. App.—Dallas 2020, no pet. h.) (op. on reh’g). The
defendants argued that the e-mails were communications on a matter of public
concern because they related to a good, product, or service in the marketplace and,
because they involved recycling scrap metal, related to health or safety, or
environmental, economic, or community well-being. Id. at *826–27. Citing Creative
Oil & Gas, the Dallas court held that while the e-mails were communications made in
connection with an issue related to a good, product, or service in the marketplace
(scrap metal), the e-mails were not made in connection with a matter of public
concern because they were “private communications between private parties about
purely private economic matters.” Id. at 830; see also Pinghua Lei v. Nat. Polymer Int’l
Corp., 578 S.W.3d 706, 715 (Tex. App.—Dallas 2019, no pet.) (holding that the
defendants’ communications about misappropriation of their former employer’s
confidential information were not related to a matter of public concern). The Dallas
court further held that
[e]ven though Defendants’ business of purchasing and selling scrap
metal may have many beneficial effects and involve matters of health or
safety, and environmental, economic, or community well-being, the
communications in this case did not involve those matters. Instead, they
concerned Defendants’ offers to buy or sell scrap metal. The
16
communications did not discuss the benefits of recycling, nor did the
communications seek to promote health or safety, or environmental,
economic, or community well-being. Instead, they were private
communications regarding private commercial transactions for the
purchase and sale of a commodity, scrap metal. Plaintiffs’ claims are
related to Defendants’ use of Plaintiffs’ confidential information to make
purchases and sales. Plaintiffs’ claims are not related to any
communications by Defendants concerning the beneficial effects of
recycling provided by the scrap-metal industry.
Goldberg, 594 S.W.3d at 830.
We agree that communications are not on a matter of public concern if the
communications are private communications related to purely private commercial
business or transactions and, through those communications, the defendants breach
fiduciary duties to the plaintiff or misappropriate the plaintiff’s confidential
information in order to pursue the business or transaction. Accordingly, we reject
Appellants’ argument that the alleged communications here were on matters of public
concern. Because CAR’s claims against Appellants are not based on communications
relating to a matter of public concern, we overrule the remainder of Appellants’ first
issue.7
In their second issue, Appellants argue that CAR failed to establish a prima
facie case for each essential element of each cause of action. In their third issue,
Appellants argue that the trial court abused its discretion by failing to strike affidavits
As always at this stage of proceedings, our holding that the TCPA does not
7
apply to the claims at issue is not a comment on the merits of CAR’s claims.
17
from CAR’s owner and two CAR employees. Because the TCPA does not apply to
CAR’s claims, we do not address these issues. See Tex. R. App. P. 47.1.
II. Attorney’s fees
In their fourth and final issue, Appellants argue that the trial court erred by
ruling that CAR “may be entitled” to recover its attorney’s fees because there is no
basis to conclude their TCPA motion was frivolous or solely for purposes of delay.
The trial court’s November 25 amended order stated that CAR may be entitled to
attorney’s fees, and it required CAR to submit evidence of its fees and to set a hearing
on the matter. The trial court has not yet determined whether CAR is entitled to
reasonable attorney’s fees and, if so, what amount to award. Accordingly, we have no
attorney’s fees award to review, and any holding by this court on that issue would be
an improper advisory opinion. See McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227,
232 (Tex. 2001). We thus overrule Appellants’ fourth issue.
CAR’s Cross-Points
I. The trial court’s jurisdiction
In CAR’s first point, it argues that the trial court had no jurisdiction to render
its November 25 amended order because, under TCPA Section 27.005, a trial court
has only thirty days after the hearing on a TCPA motion to rule on the motion, and
because the hearing was held on October 6, 2019, the deadline to rule on the motion
was November 6. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005. CAR is correct
that the trial court has only thirty days after a hearing on a TCPA motion to decide
18
whether to dismiss the challenged claims. See id. However, the TCPA does not
require the trial court to rule on the question of attorney’s fees within that time. See
id. § 27.009. Rather, the TCPA “allows a trial court to sign an order ruling on the
merits of a TCPA motion—from which, in the event of a denial, an interlocutory
appeal may be taken . . . —and then to resolve the issue of attorney’s fees in a
separate, later order.” Eureka Holdings Acquisitions, L.P. v. Marshall Apartments, LLC,
No. 03-19-00806-CV, 2020 WL 579572, at *2 (Tex. App.—Austin Feb. 6, 2020, no
pet. h.); see also Leniek v. Evolution Well Servs., LLC, No. 14-18-00954-CV,
2019 WL 438825, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.)
(mem. op.) and DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 859–60 (Tex.
App.—Fort Worth 2018, no pet)). Given that the TCPA does not require a ruling on
attorney’s fees within thirty days of the TCPA hearing and that the November 6 order
was not a final judgment, the trial court had jurisdiction on November 25 to modify
its November 6 order as to attorney’s fees. See Bowman v. The Bank of N.Y. Mellon Tr.
Co., N.A., No. 05-13-01684-CV, 2016 WL 258765, at *4 (Tex. App.—Dallas Jan. 21,
2016, pet. denied) (mem. op.). We overrule CAR’s first point.
II. This court’s jurisdiction
In CAR’s second point, it argues that this court has no jurisdiction over this
appeal because the appeal was taken only from the trial court’s November
25 amended order, an order that CAR asserts was void because it was signed more
than thirty days after the TCPA hearing. We have rejected CAR’s contention that the
19
November 25 amended order was void; as we have held, the trial court had
jurisdiction on November 25 to modify its prior interlocutory attorney’s fees order.
We therefore overrule CAR’s second point.
Conclusion
Having overruled Appellant’s dispositive issue and CAR’s cross-points, we
affirm the trial court’s denial of Appellants’ TCPA motion, and we remand this case
for further proceedings.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: April 23, 2020
20