## In the Cour t of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00438

- CV

___________________________

On Appeal from the 17th District Court Tarrant County, Texas Trial Court No. 017

- 308014

- 19
Before Kerr, Womack, and Wallach, JJ. Memorandu m Opinion by Justice Wallach 

### M IKE 

### F ARHAT 

### , US G LOBAL 

### A SSET 

### I NVESTMENTS 

### , LLC, J OHN 

### M ARTIN 

### F AUBUS 

### , T RACY 

### L. T RIMBLE 

### , M AR Y 

### M ARTINEZ 

### , M ICHAE L 

### W. B RO OME 

### , AND 

### M ICHAEL 

### W. B ROOME 

### , P.C. , Appellants

V



### . W ILSON 

### S COTT 

### , LLC D 

### / B 

### / A 

### C APITAL 

### A SSET 

### R ESOURCES 

### , Appellee2 MEMORANDUM OPINION
This is an anti

- SLA PP appeal. Wilson S co tt, LLC d/b/a Capital Asse t Resources (CAR) sued it s competitor, US Global Asset Investments, LL C ; it s founder
Mike Farhat ; US Global empl oyees ( and former CAR employees ) Tracy L. Trimble
and Mary Martinez ; US Global salesperson (and former CAR sale spe rs on) John
Martin Faubus ; an d attorney Michael W. Broome and Michael W. Broome, P .C. (collectively, Broome) , who had p repa red documen ts and p rovided legal advice for U S
Global

. The defendants (here, Appellants) filed a m otion to di smiss CAR ’ s claims

u nder the T ex as Citiz e ns Participation Act (TCPA) , and the trial court denied the
motion

. See T ex . Civ. Prac. & Rem. Code Ann. § 27. 0 0 3

. In four issues, Appellants challenge the trial court ’ s denial of their TCPA motion (issues one and two) , its failure

to exclude evidence ( i s s ue three) , and its orde r stating that CAR “ may be entitle d ” to

r ecover i ts 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 a ffirm

. Backgr ound
CAR is in the leas in g business. It finds cust omers to lease veh icle s and equipment , and it wo rks with financial institutions to arrange financing for those
leases

. Martinez worked for CAR, as did Trimble, who served as C AR ’ s chi ef operating officer. Faub us , acting a s an ind ependent contract or , found potential
lessees for CAR. Broome represented CAR in several litigation and business matters.
Farhat w as a CAR cus tomer wh o knew Trimble from her p re vious job with a bank

.3 Farhat establ ishe d U S Global on January 23, 20 19. On January 31, 2019, Trimble resigned from CAR. Martinez resigned four days later. Both went to work fo r US
Global , as did Fau bu s. In its pe tition, CAR al leged tha t in the fall of 2018, T rimble , Martinez, a nd Faubus began discussing forming their ow n busine ss to compete with CAR, that they approached Farhat as a possible source of funds , and that Broome “ assi st [e d] in their plan ’ s implement at i on ” w i thout disclos ing to CAR that its associates w ere planning a competing bu siness o r that he had advised them abou t it

. CAR further alleged that Trimble, Marti nez, and Faubus began to “ poach ” CAR ’ s cl ient s while they still
worked fo r C AR and that, both before and after leav ing CAR, the y had used CAR ’ s confidential in formatio n for their new business

. Based on these al legation s, CAR asserted clai ms for breach of fiduciary duty (against Trimble, Martinez, Fa ubus, and Broo me); aiding, abett in g, and knowingly participa ting in b reaches of fiduciary duty ( against all Appellants ) ; cons piracy ( against
all Appellants ) ; tortious interference with contrac ts, prosp ective contracts, and actu al

a nd p rospective business re la tionships ( against Trimble , Martine z, Faubus, Farhat, and
US Global ) ; conversion and unjust enrichment ( against Faubus and US Global ) ; and
bre ach of contract ( agai nst Faubus )

. App ellants filed a jo int TCPA moti on t o dismiss CAR ’ s claims , c ontending t hat
tho se claim s were ba sed on, related to, or were in response to their exercise of their rights of free speech and of assoc iation. Appella nts argued t hat CAR ’ s claims arose4 from commun i cations that were ma de (1) by individual s wh o joined to gether to
colle ct ive ly e xpress , promote, pursue, or defend a common in terest in developing and maintaining US Glob al as a successful bus iness and as CAR ’ s competi t or and (2) in

conne ction wi th US Global ’ s providing servic es in the mar ke t place, which is a m at ter of public concern

. CAR filed a r espons e assertin g that Appellants had failed to show that the TCPA applied

. In Appellan ts ’ reply, they o bject ed to evidence that CAR had

attac hed t o it s TCPA response , and t hey moved to strike certain aff idavits.
T he trial cou rt heard the TCPA mo tion on October 7, 2019. On November 6, 2019, the trial c ourt signed an ord er denying the motion , stating that CAR “ is entitled

to re co ver its court co sts and re asonable attorney ’ s fees, ” and order ing CAR to submit

e vid en ce of its fees and costs and to request a hearing. [Emphasis added.] On
November 25, the trial cour t signed an amended order , which chang ed the “ is entitled

to ” language in th e Novembe r 6 order to “ may be entitled

. ” See Act of May 24, 2011, 82nd Leg., R.S., ch. 3 4 1, H.B. 2973, § 2 (amended 2019) (curren t version at Tex. Civ.
Prac. & Rem. Code Ann. § 27.0 0 9 ( c )) 1 ( pr oviding that a trial court may award court costs and reasonable a ttorney ’ s fees to th e n onmovant if the court finds that the
TCPA motion is frivolous or solely in tended to delay )

. The ne xt day, Appellants filed

a notice of appeal from the trial court ’ s or der “ signed Novem ber 6, 201 9 and

1 For ease of reference, when citing t o a section of the TCPA that has been amended s in ce the filing of this suit, we initially cite the session law of the now

amended section , but s ub s e quent citations will simply cite t o the c urrent section number

.5 am e nded November 25, 2019 ” and a n objec tion to the t ria l court ’ s failure to rule on
their evidentiary objections and motion to stri ke. Appella nts ’ Issu e s I
. Application of the TCPA In their first issue, Appellants argu e that t he TCPA ap plies to th is case b ecaus e CAR ’ s clai ms are based on, rel at e d 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 TCP A applies

. See T ex . C i v. Prac. & Rem.
Code Ann. § 27.0 0 5 (b ). App ellants d is p uted 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 bu t by the plaintiff ’ s allegations , ” a nd a s such, the plaintif f

’ s petition “ is the best and a ll

- su ffic ient eviden c e of the nature of the action

. ” Hersh v.
Tatum , 526 S.W.3d 462, 467 (Tex. 2017) (q uoting Stockyards Nat ’ l Ba nk 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 co ns t itute evide nce a t r ial cour t

mu st co nsider 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 ban c )

. We ther ef ore begin our analys is by looking at CAR ’ s pleading s .6 A. C AR ’ s a lle gations
C AR pled the f ollowing facts. Tri mble and Martin ez w ere CAR em ployees

. Faubus worked f o r CAR as an indep ende nt co ntractor , but he and CAR “ understood and agreed ” t hat he wo r k ed exclusively for CAR

. All three of t hese defendants developed and created “ financial data/t rade secrets ” in the course of their work at
C AR , and CAR kept this informa tion

— inc l uding “ potential lease cus tomers, their leasing needs, the sources of possible capita l (i.e., the lend ers) [,] and all information regarding the entire leasing process ”

— stri ctly confidential.
CAR ’ s potential lease custo me rs gave CAR confidenti al financial information , and to protect t his information, CAR request e d lender s fin ancing the leases to sign
nondi s closure agreeme nts (NDAs). While the general elements of how to cond uct an equipment and vehicle le asing bus iness a r e not tra de secrets , the information CAR kept about the identi t y of existing and potential le s s ees , the lenders who were
available to fund certain types o f leases , and the lenders ’ exact requirements and
fina ncing terms i s not known to the ge neral p ub lic

. T rimble, Martinez , and Faubus were regularly give n access to this confidential information

. CAR had a leasing relationship with Farhat , a nd as such , Far hat was in a position to see how CAR
ha ndled its business a nd the safeg uards that CAR required i ts employees and agents to use to pr otect confidential da ta
. Tri mble , Martin ez, and Faubus began planning t o leave CAR to work for US Global, Far hat ’ s new c ompe t ing b usiness

. B efore they left CAR , however, a s a way t o7 get a “ running s tart ” for the new b us iness, the y began using CAR ’ s customer base a nd
confide ntial inf ormation

. They planned to make new leases to CAR ’ s customers and , in some cas es , replace CAR ’ s e xisting leases with new US Globa l lease s that o ffer e d
lower rates o r better terms

. Appellants t old other CAR employees to stall s everal in

progress CA R le asing opportunities that Appellants then divert ed to US Global

. During this time, Fa ubus, Trimble , and Martinez were actively so l iciting business for
US Global using relationships and financial data de ve loped by CAR , and Fa ubus did

n ot disclo se to CA R that h e was no longer actin g exclusively for CAR

. Appellants
also copie d some of CAR ’ s forms for use b y US Global

. Broome advis ed Fa ubus, Trimble, and Martinez about their proposed relationship with US G l obal, gave them lega l ad vice supporting a c ompeting bid with a customer CAR was actively negotiatin g with, and advised them on c r eatin g int ernal

“ form ” le ases and oth er documents

. Broom e never di sclosed to CAR that Broome
had advised Appellants on th ei r com petin g business

. CAR further alle ged that Appella nts conti nued to use CAR ’ s confidential
informa tion after Trimble, Martin ez, and F aubus le f t CAR. For example, CA R had an
ND A with Po int Bank, and Appellants used conf idential customer data that CAR h ad
discl osed to Point Bank under that NDA. Further, o n behalf o f US Glob al, Faubus gave lea s e documen ts to a longstanding CAR c ustomer, W.T. F iberlink, and h e used a CA R/W .T. Fiberlink app lication to apply for funding with a le nder

. CAR pled that a s8 a r e sult of Appellants ’ actions as alleged in the petition , CAR lost existing business
and potential busin ess opportunities.
B. Right of asso ciatio n We now turn to Appella nts ’ argument that CAR ’ s claims were based on , related to, or in response to their e xercise of the right of assoc i ation

. The applicable ve rsion
of the TCPA defines the “ exercise of the righ t of association ” as “ a commun icati on betw een i ndividual s w ho join together to collectively express, promote, pursue, or
defend common interests. ” Ac t of May 24, 2011, 82nd Leg., R.S., ch. 3 4 1, H.B. 2973, § 2 (amended 2019) (curren t version at Tex. Civ. P rac. & Rem. Code Ann. § 27.0 01(2)). The p lain meaning o f th e word “ common ” in this definition “ requires
more than two tortfeasor s conspiring to act tortiously for their ow n selfish bene fit. ”
Ka wcak v. Antero Res. Corp. , 582 S.W.3d 566, 588 (Tex. App.

— For t Worth 201 9, pet. denied). Rather , the s tatut e “ requir [es] interests common to the public or a group. ”
Id. at 575

. Here, CAR a lleg ed that Appellants conspired to a nd d i d take its co nfidentia l
information in order to compete wit h CAR and th at they used that infor mation to
p oach C AR ’ s ex is tin g an d p otential cl ie nts. Th ey presumably communicated with
each other to accomplish thes e acts, 2 assuming that CAR ’ s allegations are true
.

2 Not every act complained of by C A R ne c essarily involved communications; for e xample, CAR ’ s petiti on di d not allege any factual detail s abou t how Appella nts took its confidential informatio n

— whether they did so b y saving elec t ronic d ata to a portable hard d rive, by transmitting the information to another pers on, or some other9 Howev er, the c ommon interest they joined together to pursue is not an inter est that
th e TCPA pro tect s ; the “ co mm on inte res t ” here is , a llegedly, tortfeasors breaching
fidu ciary duties and working together f or their own personal benefit rather than an interest c omm on to the pub l ic or a larger group. See id. at 575, 588. Appellant s argu e that CAR ’ s allegations impl icate two common intere st s : “ t he business of US Global, operating as CAR ’ s competit or , ” and th e communit y ’ s interest
in a free and competit ive marketpl ace. They assert that CAR ’ s claims are based on , related to, or in response to “ com munic ations about forming US G l ob al, providi ng services to US Global, or soliciting or providi ng services of US Global in the broader leasing marketpla ce in com petition with CAR. ” However, CAR did not assert claims
based on the fact that Appe llant s were competing w it h it or communicat i ng about
comp eting

. It s claims are ba se d on alleg at ions about how Appellant s competed : by breaching fiduc iary duti es owed to CAR and by taking or conspiring with others to tak e its confid ential informat ion

. Th e com munic ations alleged by CAR ar e thus no t protected by the TCPA. 3 See id.

method . However, for purp oses of our an alysis , we w ill assume that , aside f rom the breac h of fiducia ry duty claim ag a i nst Broome, each of C AR ’ s claims i n volved commun icat ions

.
3 Appellants essen tially argue that CAR ’s purpose in suing them i s nothing more than an attem pt to quash competition. However, regardless of CAR ’s true motiva tion in suin g Appellant s , we determine whether the TCPA appl ie s based on CA R ’s allegatio ns, and the factu al basis pled by CAR for its claims is not communications involving Appellants ’ exercise of rights protected by the TC PA

.10 In Appel lants ’ reply bri ef, they attempt to disting uish Kawcak by noti ng that

“ [c ] ases citing Kawcak have generally held that [the] TCPA right of association does not apply to commu n ica tions between tortfe asors tha t misappropri ate co nfidenti al
business informa tion or im plica te confiden tiality agreements , ” but tha t here, CAR ’ s suing Broo me with t he other defendants “ show [ s] that the communications he re are differe nt from Kawc ak or the cases trying to dra w a distinction for ‘ p riva te business ’
d isputes. ” 4 They con tend that “ CAR d oes no t allege that Broome had an interest in [ US Global ] or in [ US Gl obal ] ’ s busines s. The only association alleged involvi ng Broome is that he provid ed servi ces to [ US Global ] a s its attorney and comm uni cated
with [ US Global ] e mployee(s) providing legal adv ic e. ” 5 This argument does not help

4 Appellants also attempt to dist inguis h Kawcak by po i n t ing out that it involved two tortf easors and that this court s tated in that case that “ the interests of t wo conspirators who join together to commit a tort do not cross the threshold of common and th us do not bring the consp i rators within the pr o te ctions o f th e TCPA. ” Kawcak , 582 S.W.3d at 576

. Appella nts note that here, the clai ms against Ap pellants extend beyond “a set of only tw o people. ” However, Kawcak di d not hold that a gr oup of more than two alleg ed tortfeasors with a c ommon i n tere st constitutes a group for pur poses of making their shared inter est a “ common interest ” under the TCPA ; this court specifically stated that in that case we were not required to determine what s iz e group must s hare an inte rest before that int e re st qua l i fies as a “common interest ” under the T CPA. Id. We need not decide that questio n in this
case either. We hold merely that under the facts of this case, Appellants ’ alleged int erest in committing to rt s to further private b usiness interests do e s not qua l i fy as a

“ common interest ” for purp oses of the TCPA.

5 As we discuss b elow, we reco gnize that Texas law generally protects an attorney from liability for his conduct in his representation of a client w he n sued by someone othe r than that client. Cantey Ha n g

er, LLP v. Byrd , 467 S.W. 3d 477, 4 81 , 483 (Tex. 2015)

. However, the existence of this protection is not dete rminative of the ini tial question of whether a claim against the attorney is based on, relat e s to , or arises11 A ppel lants. T he common interest that Appellants raised in their TC PA motio n

— the
pu rpose f or which they allege dly joined together

— was developing and maintaining
US Gl obal as CAR ’ s competi tor
. CAR ’ s p etition contains no facts or claims indicating that Broom e shared that same interest or join ed them for the pur po se of promoting, pursuing, or def ending it , and Appel lants ’ TCPA motion does not contend that he did so

. Thu s, Br oome ’ s in clusi on do es not make Kawcak distinguishable; Appellants admit that Broome did not join with th e other Appellants
to pursue a commo n inte rest, and , even if h e had, th e common interest is one that , under Kawcak , is not prote c ted by the TCPA. See id. a t 575 , 588

. C. Ri gh t of free speech Appellants further argue under their f irst issue that CAR ’ s claims are based on,
relat ed to, or in respons e to Appellants ’ exercise o f the right of free speech. T h e applicable ve rsion of the TCPA define s the “ e xerci s e of the right o f fr ee speech ” as “ a

c ommunicatio n made in connecti on w ith a matter of public con cern , ” and it define s a

“ mat t er of publi c concer n ” as in cl uding “ an i ssue r elated to : (A) health or safety; (B)
environm ental, econ omic, or community we ll

- be ing; (C) the gove rnme nt ; (D) a public

o f ficial or public figure; or (E) a go od , product, or servic e in the marketplace

. ” Act o f May 2 4 , 2 011 , 82n d Leg., R. S ., ch . 341 , H.B. 2973, § 2 (amended 201 9) ( current out of the attorney ’ s e xer cise of th e rights prot e cted by t he TCPA. Fur ther, our acknowledgment of the exi stence of thi s protection is not a comm ent on whether it could appl y to a case in which a client ’ s suit against its former attorney is based not on communications the atto rney has with a n other client but on the failure to disclose a conflict of interest

.12 version at Tex. Civ. Prac. & Re m. Code Ann. § 27.0 01 (3), ( 7 ) )

. Citing the Texas Sup reme Court ’ s opinion in Cr eative Oil & Gas, LLC v. L ona Hills Ranch, LL C , Appellants assert that CA R ’ s claims are based on, r elated to, o r in response to the ir

c ommunications with each other about forming and develo ping US G lobal and their
communications with ot her businesses, includi ng a ny pot ential cu stome rs and lenders
in the equipm ent

- leasing marke tpla ce , and that these communic ations “ clearly ‘ h ave

some relevance to a public audie nce of potential buyers or selle rs ’ or at lea s t ‘ could reasonably be characterized as involving p ublic c oncerns . ’ ” 591 S.W.3 d 127, 13 0, 136

. Ap pellants a rgu e that business associates have a right to comm unicate amongst themselves about custome rs and that individuals generally ha ve th e right to compe te with former emp loyer s , see Abet ter Tru cking Co. v . Arizpe , 113 S.W.3d 503, 510 (Tex. App.

— Houston [1st Dis t.] 2003, no pet.) , and they assert that the communications on
which CAR ’ s claims are based meet two d i fferent pa rts of the definit io n of “ matter o f public concern ” : relat ing to economic and commun i ty interes ts (by pro moting competiti on) and relating to a service in the marketplace. Turning first to CAR ’ s claims aga inst B r oome , we conclude that the y do not
fall within th e TCPA ’ s protec tion of free s peech

. Appellants argue t hat “ [t]he
foundation of [ CAR ’ s ] complaint agai nst Broome is not bas ed on his advice to CAR,
but on his association and provision of legal advice to CAR ’ s competitor, i.e.[,] services provided in th e public marketpla ce to CAR ’ s co mpetitor. ” CAR ’ s claims against Broome , however, are solely ba sed on his all eged nondisclosure : C AR all eged13 that Br oome had a fiduc iary duty to disclose any conflicts of interest and that , in violation of that duty, Bro o m e never told CAR tha t he was re pre sentin g the other App ellants “ w ith respect to their efforts to leave CAR, create a c ompany to compete with CAR , take confidential information and customer financial data with them, etc ., and [h is] decisions to provide th e m with legal advice i n their joint and mu tual efforts

to compete a gainst CAR , general ly

. ” Claims th at are based on , related to, or in response to the absence of communication do not fall within the TCPA. See Te x. Civ.
Prac. & Rem. Code A n n . § 27.001(1) (defin ing “ communicati on ” under the TCPA as the m a king or submitting of a statement or document); Ra y v . Fikes , No. 02

- 19

- 00232

- C V, 2019 WL 6606170, at *3 (Tex. App.

— Fort Worth Dec. 5, 2019, pet
. denied ) (me m. op .) (stating that the defini t i on of “ communication ” in the TCPA doe s n ot include the failure t o communicate, and thus plaintiff ’ s claims against h er former attorney for faili ng to f ile a claim within the li mitations period did not fall within the TCPA)

. CAR also include d Broome in it s conspiracy claim s, a sserting that he
par ticipated i n a con spiracy with the other Appellants to breach his f iduciary dut y to CAR

. Consp iraci es ge nerally involve communications amon g the conspirators

. See
Bandin v. Fre e & Sovereign State o f Veracruz de Ignacio de la Llave , 590 S. W.3d 647,
651 n .9 (Tex. A pp
. — Houston [14th Dist.] 2019, pet. filed) . T hus , CAR impl iedly alleg ed that Broome, in c onspir ing with the other Appellants to breach his fiduciary duty to CA R, com municat ed something to t h e othe r Appell ants. However, CAR did14 no t describe or r eference a ny communications between Broome and the other App e llants related to or in further ance of this particular co nspiracy , and we therefore cannot say that these communications, whatever they we re , w ere on a matter o f public

concern . W hile CAR did pl ead some s pe cific communications by Broome

— it alleged
that h e provided documents to the other Ap pellants , and it stated that it “ reasonably
believe s ” that Broome a dvi sed Appellants that t hey “ were ‘ e nt ire ly free ’ to do wh at they wanted in te rms of future c ompetition w ith CAR ”

— t h ose communication s are unrelated to Broome ’ s alleged nondi sc losure in breach of his fi duciary duty to CAR or

to CAR ’s claim of a conspiracy to breach B r oome ’s fiduciar y duty by not disclo s ing
the other Appellan ts ’ actions . W e ther efore cannot s ay that CAR based its conspiracy

c laim ag ainst Broome on communicatio ns involving a matter of public concern . 6

6 O ur holding t hat the TCPA does not apply to C AR ’ s claims against Broome is not a comment on th e ultimate viability of th ese claims

. Further, w hile the TCPA does not a pply to the claims a gainst Broome here, we do not hold that an attorney may never obtain dism issal of a claim under the TCPA. I n order to give attorn eys latitude to prac tice their profession , Texas law provides the a ff irmative defense of attorney immuni ty , which generally p r otect s attorneys from liability to non clients for
an attorney ’ s acts and communica tions in representation of a client

. Cantey Ha nger , 4 67 S.W. 3d at 481 , 483

. As CAR acknowledged i n its resp onse to the TCP A motion, the TCPA does no t abrogate any defe n se , immunity, or privi lege under the l aw . T hus , even if the TCPA applie s to a claim a gainst an a ttorney and the plai ntiff makes a prima facie case for the claim , the TCPA would not abrogate the atto rney

- immunity defense

— if, that is, that defense appl i e s under the facts of t h e case . Se e , e.g. , Rogers v. Walker , N o. 0 9

- 15

- 00489

- CV , 2017 WL 3298228, a t *5 (Tex. App.

— Beaumont Aug. 3, 2017, pet. denied) (mem. op.) (applying attorney immunit y in the context of estate admini st ration and di sagreeing with the appellant ’ s argument that th e doct rine applies only to an attorney ’ s conduct in the litigat ion contex t ); Santia go v. Mackie Wolf Zientz & Mann, P.C. , No. 05

- 16

- 00394

- CV, 2017 WL 944027, at *4 ( Tex. App.

— Dallas Mar. 10, 201 7, no pe t.) (mem. op.) ( citing Cantey Hanger to reject t h e argument that attor n ey15 As for the claims against the remaining Appellants, two cases gui de our analysis

. Fi rst, i n Cr eative O il & G as , t he Texas Sup reme Court construe d th e TCPA ’ s definiti on of the p h rase “ ma tter of public concern ” and held that “ the definition
confirms that the right of fr ee speech involves communications connected to ‘ a

matter o f public concern ’ ” an d that t he phrase d oe s not commonly ref er to “ purely private matters

. ” 591 S.W.3d at 134

. T h u s, alt hough the definition includ es i ss ue s related to econ omic well

- being , that a claim that affect s the e conomic interest of t he parti es do es not by itsel f make a cl a i m one that re l ated t o econ omic w ell

- being so a s to qualify as a mat ter of p ublic con c e r n unde r the TCPA. See i d. at 137

. The co urt concluded that “ [a] pri vate contract dispute a ffecting only the fortunes of the private
pa rti es involved is si mpl y not a ‘ mat ter of public co nce rn ’ under a ny tenable
und erstanding of those word s. ” Id.

immunity applies only to atto rneys involved in lit igat ion ); Fark as v. Well s Fargo Bank, N.A. , No. 03

- 14

- 00716

- CV, 2016 WL 7187476, at *8 (Tex. App.

— Austin D ec. 8, 2016, no pet.) (mem. o p. ) ; Alp ert v. Crain, Caton & James, P.C. , 1 7 8 S.W.3d 398, 40 8 (Tex. App.

— Housto n [1st Di st.] 2005, pet. denied) ( discussing immunity i n conte x t of plaintiff ’ s claims against alleged tortfeasor ’ s attorney and holding th at the attorney had immuni ty fo r “ acts taken and communications made to facilitat e the rendition of legal service s ” t o the attorney ’s cli ent wh en the attorne y had no legal privity wit h the plaintiff and no independent duty to the plaintiff together with th e plaintiff ’s justifi able rel ia nce on the attorney ’s act or re presentation ) ; see a l so Troice v. Greenberg Traurig, L. L.P. , 921 F.3d 501, 505

– 06 (5th Cir. 2019) ( concluding that the Texas Supreme Court would apply att orney immunity in a non

- litiga tion c ontext ) ; LJ H , Ltd . v. Jaffe , No. 4:15

- CV

- 00639, 2017 WL 447572, at *2

– 3 (E.D. Tex. Fe b

. 2, 2017) ( applying attorney immun ity to conduct durin g sale of business )

. But see NFTD, LLC v. Haynes & Boone, LLP , 591 S.W.3d 766, 776 (Tex. App.

— Houston [1 4th Dist.] 20 19, pet. filed)

. To be clear, we make no determination whethe r the attorney

imm un i t y defense applies here

.16 Sec o n d, t he Da llas court of appeals rec ently applied sim ilar reason ing in analyzing whether the TCPA appli ed to tort claims

. In Goldberg v. EMR (USA
Holdi ngs) Inc. , the plaintiffs alleged that t he def endants had used the p laintif f

s ’
confiden tial infor mation i n e

- mail s sent by the defendants to purchas ers and suppliers. 594 S.W.3d 818, 826 (Tex. App

. — Dallas 2020 , no pet. h.) ( o p. on reh ’ g ). The
defendants argued that t he e

- mails were communica tions on a matte r o f public

co nc ern b ecause they related to a good, pro duc t, or servic e in the marketplace and , because t hey involved recycling scrap metal , related to health or safety, o r environmenta l, economic, or community well

- b eing

. Id. at * 826

– 27

. Citi ng Cr eative
Oil & Gas , t h e Dal las c ourt h e ld that while the e

- mails w ere communications made in

conn ection with an issue related to a good , product , o r service in th e marketplace ( scrap metal) , the e

- mails were not made in connec ti on with a m atter of public
concern b ec ause they we re “ p riv a t e commu nications between priv ate p arties about purely private economic matters. ” Id. at 830 ; see also P inghua Lei v. Nat. Polymer Int ’ l Corp. , 578 S.W.3d 706, 715 (Tex. App.

— Dallas 2019, no pet.) ( holdi ng that the
defendants ’ commu nications abou t m i s a pprop riation of their former emplo yer ’ s confi dential information were not related to a matter of public conc ern). The Dallas

court furthe r held that [e] ven though Defendants ’ business of pur cha sing and sel ling scrap metal may have many beneficial ef fec t s and involve matters of health or safety, and environmental, economic, or community well

- bein g, the communic ations in this case did not in vo lve those m atters. Instead, they concerned Defendan ts ’ offers to b uy or sell scrap metal. The17 c ommunications did n ot discuss the benefit s of recycli ng, nor did the communications seek to promote health or sa fety, or enviro nmental, economic, or communit y well

- being. Instead, they were private communicatio ns regarding pr ivate comme rcial transactions for the purcha se a n d sale of a commodity, scrap metal . Plaintiff s ’ claims are related to Def endants ’ use of Plai ntiffs ’ confide ntial information to make purc ha ses and sal es. Plaintiffs ’ claims are not related t o a ny communica tions by De fendants concerning the beneficia l e f f

ects of recycling provid ed by the scrap

- metal industry. Goldberg , 594 S.W.3d at 8 30

. We agree that communications are not on a matte r of public concern if the
communications are private com munications related to purely priv ate comm ercial
business o r t ransactions and , through those co mmunications, the defendants breac h
fid uciary duties to the plaintiff or misappropriate the plain tiff ’ s co nfidential
information in order to pursue the business or transacti on . Accordingly, w e reject Appellan ts ’ argumen t t hat the al leged communications he re we r e on matters of public

concern . Because CAR ’ s claims a gainst Ap pel lants are not based on com munic at ions relating to a matter of public concern, w e over r u l e th e remain der of Appellants ’ first
issue. 7
In their secon d i ssue, Appellants argue that CAR f ailed to establ i sh a prima
facie case f or each essential el ement of each cause of action

. In their thir d issue, Appellants argue that t he tr ial court abused its discretion by failing to strike affida vits

7 As alway s at this stage of pr oceedings, our h old ing that the TCP A does not apply to the claims at issue is no t a comm e nt on th e merits of CAR ’s claims.18 fr om CAR ’ s owne r a nd two CAR employees

. B ecause th e TCPA does not a pply to CAR ’ s claims , we do not a ddress th ese issue s . See Tex. R. App. P. 47. 1.
I I
. Attor ney ’ s fees
I n their fourth and final issue, Appellants argue that t he tria l court e rred by ruling that CAR “ may be en t itled ” to rec over its at tor ney ’ s fees because there is no basis to conclude the ir T CPA m otion was frivolous or solel y for purposes of dela y. The trial court ’ s Novem ber 25 amended order state d that C A R may be entitled to
attorney ’ s fe es , an d it requi red CAR to s ub mit evidence of its fees and to s et a hearing
on the matter. The trial cou rt h as not yet determined whether CAR is entitled to

reas on able attorne y ’ s fees and, if so, what amount t o award

. A ccordingly , we have no

at torney ’ s fees aw ard t o revie w , and any holding by this court on that issue would be an improper advisory opin io n . See McAllen Med. Ctr., Inc. v. Cortez , 66 S.W.3d 22 7,
232 (Tex. 2001)

. W e thus overrule Appellants ’ fo ur t h issue.
CAR ’ s Cross

- Points
I. The tr ial court ’ s ju risdiction
In CAR ’ s first point, it argues that t he trial cou rt h ad no jurisdiction to render
its No v ember 25 amende d or der b ecause, under TCPA Section 27. 005, a trial court ha s only thir ty days after t he h earing on a TCPA motion to r ul e on the motion, and
because the hearing was held on October 6, 2019, the deadline to rule on t he motion
was November 6. See T e x. Civ. Prac. & Rem. Code Ann. § 27.005. CAR i s correct th a t the t rial court has only thirty da y s after a heari ng on a TCPA m ot ion to decide19 w hethe r to dismiss the challenged claims

. See id

. However , the TCPA does not require the trial court t o rule on the question of att or ney ’ s fees within that tim e . See
id. § 27.009

. Rather, the TCPA “ allows a t rial cou rt to sign an order ru ling on the
merits o f a TCPA moti on

— from which, in the event of a denial, an interlocutory appeal may be taken

. . . — an d then to resolve the issue o f attorney ’ s fees in a
sep arate, later order

. ” Eureka Holdings Acquisition s , 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 W ell Servs., LLC , No. 14

- 18

- 00 954

- CV,
2019 WL 438825, at *2 (Tex. Ap p.

— Houston [14th Dist.] Apr. 2, 2019, n o pet.) (mem. op.) and DeAngel is v . Protective P ar ents Coal. , 556 S.W.3d 836, 859

– 60 (Tex. App.

— Fort Worth 2018, no pet ) )

. Given that the TCPA does n ot require a ruling on

attorn ey ’ s fees within thirty da ys of the TC PA hearing and that the November 6 or d e r

was not a final judgment , t h e tr ial court had ju risdiction on November 25 to m odif y its November 6 order as to attorney ’ s fees. See Bowman v. The B ank of N.Y. Mellon Tr.
Co ., N.A. , No. 05

- 13

- 01684

- C V, 2016 WL 2 58765, at *4 (Tex. App.

— Dallas Jan. 21,
2 0 1 6, pet. denied) (mem. op.)

. We ov errule C AR ’ s f irst point.
I I. This cour t ’ s jurisdiction
In CAR ’ s s eco nd point, it argues tha t t his co u rt h as n o jurisdicti o n over this appeal because the appeal was ta ken o nly fro m the trial court ’ s November
25 amende d o r d er , an orde r that CAR asserts was void bec ause i t was signed more than thir ty days after the TCPA hearing

. We have re jected CAR ’ s contention th at t he20 November 25 amende d order was void ; as we have hel d, the trial court had jurisdiction on November 25 to m odif y it s prior inter l ocutory atto rney ’ s f ees or der

. W e ther efore overrule CAR ’ s second po i nt. Conclusion Having over rule d Appella nt ’ s dispositive issu e a nd CAR ’ s cross

- points, we
affirm the tr ial court ’ s deni al of Appellan ts ’ TCPA motion, and we re mand t his ca se for further proceedings.

/s/ Mike Wallach Mike W allach Justice
Del iv ered: April 23, 2020