Affirmed in Part and Reversed and Rend ered in Part and Memorandum

Opinion filed August 23, 2022

.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00771

- CV

ROBERT A. HAY , Appellant

V. ECORP INTERNATIONAL, LLC ; E CORP ENERGY MARKETIN G LLC ; AND SENSA

- LREC LLC , AS ASS IG NEE OF THE RIGHTS OF SENSA

HOLDINGS, INC

. , A ppel lee s
On Appe al from the 334th District Cou rt

Harris County, Texas Trial Court Cause No. 2019

- 23189

MEMORANDUM OPINION Appellant Robert A. Hay bring s this interlocutory appeal challenging the trial court ’ s denial of his motion to d i smiss under the Te xas Citizens Part icipation Act ( TCPA ) the claim of to rtious interference asserted by appellees eCORP International , LL C ; eCORP Ener gy Marketing LLC ( eCEM) ; and SENS A

- LREC, LLC , as assignee of the rights of SENSA H oldings, I n c. ( S ENSA ) , for Hay ’ s2

anonymo us mai lin g of information to a third party to interfere with or prevent SENSA ’ s p urchase of a natural

- gas storage facility. See T ex. Civ. Prac. & Rem. Code Ann. § 51 .014(a)(12) (i nt erlo cutory appeal of d enial of TC P A motion to d ismiss)

. Hay argues the tri al cou rt erred by (1) denying his motion to dismiss and (2) finding that h is motio n to dis miss was frivolous or filed so lely for purpos es of delay. We conclude that in the first step of the TCPA analysis Hay d emonstr ated that appellees ’ claim for torti ous interference w ith prospective business r elations is based on or in response to his exerci se of free speech. In the second step , SENS A met its burden of es tablishing the prim a facie elements of its cause of action
aga inst Hay. However, eCORP I nter national and eCEM did not meet their b urden on their claims for tortious interference with prospective business r elations against Hay. In the third step of the TCPA analysis , Hay did not establish his defens e of

tr uth or subst antial truth as a matter of law. Therefore , w e affirm th e trial court ’ s denia l of Hay ’ s motion to dismiss as to SEN SA but reverse with respect to eCORP
I nternational and eCEM

. We also hold the trial court erred in determining that
H ay ’ s motion to di smiss w as frivolous or bro ught solely for purposes of d ela y.
I. B ACKG R OUND Among other venture s , eCORP International is invol ved in the development, operation , sale , and acquisition of natural

- gas st orage facilities across the United States

. I n 201 4, e CORP Internati o nal , through affi liated entities, beg an strategi cal ly a cquir ing n atural

- gas storage assets which it b elieved to be undervalu ed

. e CORP International also found a financial partner to raise capital for these ac quisitions and cr eated SENSA Holdings, Inc. 1 fo r the purpose of managing

1 SEN SA Holdings, Inc. i s a platform company cr eate d for the purpo se of acquiring a nd managing a portfolio of nat ural

- gas storge assets

. S ENS A H oldi ngs is owned by Scie ns eCORP3

the st orage assets. e CORP Internationa l a lso created and formed eCEM to act as the exc lusive marketing affiliate for the st orage asse ts and platform , focus ing on optimiz ing the capa city of st orage fa cilitie s through tradi ng a nd he dging strategies. Hay had been i nvolved with eCORP affiliated co mp a nies 2 for several years and was an officer at eCEM when he left the company in 2017. After he left eCEM , Hay ’ s relationship with eCORP International’s chairman of the board and CEO, John Th rash , deteriorated

. The eCORP affiliated comp anies allege t h at Hay left eCEM to pursue a competing ve nture using proprietary models and information developed by eCORP affiliated comp anies

. They also allege that Hay ’ s departure an d his alleged conspiracy wi th com peting ventur es resulted in the eCORP affiliated comp ani es ’ inability to satis fy certain contractual requirements and acquire business investment, resulting in financial losses. In April 20 19, appellees file d suit against Hay (a s well as several othe r individuals and e ntities not

re levant to this appeal ) 3 al leg ing he co nspired with the c ompany that hired him on his departure from eCEM t o usurp and misappropria te business plan s and
prop rietary trading models developed by the eCORP affiliated comp anies

. The eCORP affiliat ed comp anies identified the Gill Ranch f aci lity 4 a s an acquisition target in 2017 . Ab out a year later, SENSA along with other eCORP affiliated comp anies , 5 filed a joint application with the owner s of the Gill Ran ch

Storage, in whic h e CORP Storage, LLC o w ns a di rect 50% interest

. Altho ugh t he recor d does not provide specifics , eCORP Storage is repre sented , in the joint appli c ation to the Cal ifornia Public Utilities Co mmission , to be pa rt of the “ eCORP Inter national, LLC f amily of companies. ”

2 We generally refer to the “ eCORP Int er national, LLC fami ly of companies ” in this opinion as the eCO RP a f

filiated companies.

3 All of t h ese additio nal claims remain p en d ing in t he trial court a nd a re not a subject of this appeal.

4 The Gill Ranch facili ty is located in Fresno, California. Pac ific Gas and Electric Company (PG&E) , a California ut il ity , own s a 25% stake in the facility

.

5 The other eCORP entitie s involve d in the joint applicatio n were Sciens eCO RP Natural4

facility, then a wholl y

- owned subsidiar y of NW Natural Gas Storage, LLC , for

trans f e r of control of G ill Ranch Storage, LLC

. According to the joint applica t ion, Gill Ranch Storage, LLC owns a 75% undivided interest in the Gill Ranch facility. In the agreement between SENSA and NW Natur al Gas S t orage, LLC , SENSA agreed to purc hase th e ou tstanding limited lia bility interests in Gill Ranch Stora ge, LLC

. The tr ansfer had to be approved by the Cal ifornia Public Utilities Co mmission (CPUC) under Califo rnia law

. Though the transaction was initially supported by all stakeholders, the CEO of NW Natural G as Storage, LLC received the following anonymous letter in February 2019 :
To Whom I t Ma y Concern : RE: Gill Ranch John Thrash lies profusely in his statement to t he California Public Utili ty Commission

. The last util ity that got tangled up with John Thrash wo u nd up being pilfered for more than $ 25 MM thru fraudulent transfers ( see attached ) , th e Stuart storage field did not perform as promised , and involved legal ac tion that spanned a period of 6 years

. The Stagecoach project likewise ended up in substantial li t igation

. eCORP did not build the Katy Hub , rat her that honor goes to Western Gas Reso urces

. There are five separate lawsuits currently filed against eCORP and John Thrash in Houston

. A ll of the information , and m ore, can be found in the publ ic record

. T he last thing PG & E needs is a partner like eCORP

. The documents attached to the letter included plead ings from various federal lawsuit s which alleged misrepresentations and financial misc onduct on the part of

Gas Storag e Ho ldin gs, LLC ; eC ORP Storage , LLC ; and SCI ENS Natural Gas H old in gs, LLC. None of the se ent ities were parties in the trial cour t

.5

T hras h

. The pa ckage appeared to be mailed from e C O RP ’ s Houston address

. NW Natural Gas Storage, LLC forwarded the anonymou s letter to eCORP affiliated
comp anies , CPUC and CPUC ’ s Office of the Safety Advocate (OSA), which withd rew from a settlement agreement app roving the transfer in order to investiga te the materi als in the anonymous letter

. After t he eCORP affiliated
comp anies filed suit ag ainst Hay, they learned he was the author of the anonymous letter.

CPUC ultimat ely approved the tran sfer , and the acqui siti on was completed after a delay

. Aft er a hearing, SENSA agreed to provide an additional

com mercial

- crime insurance policy protecting CPUC and PG&E against fin ancial malfeasance on the part of Thras h or any other officer of the eCO RP affiliated
comp anies

. A ppellees maintain the delay r esulted in substantial addition al costs , attorne y s ’ fees , and other consequential damage s

. In August 2020, appellees a mended their petition to add a claim against Hay for tor tious interferenc e with pro spective business relatio n s arising from his disseminat ion of the anonymous pac k age

. H ay filed a motion to dismiss ap pellees ’ claims of tortious interference with prospective busi ness relation s pursuant to the TCPA, which was denied by the tr ial court. In addition , the trial court ord ered sanctions impos ed against Hay, stating:

The C ourt further finds that the Motion is frivolous and/or was solely intended to delay. Accordingly, pursuant to Tex. Civ. Prac. & Rem. Code § 27.009(b) , Defendant Robert A. Hay is hereby ORDERED to pay Plaint iffs’ reasonable cos ts and attorneys’ fees incurre d in opposin g the Motion

. After filing an interlocutory appeal, Hay asked this court to abate the appeal so that the trial court could make fi ndings of fact in accor dance with t he TCPA. See Tex. C iv. Prac. & Rem. Code Ann. § 2 7.007 (a) ( “ If the court awards sa ncti o ns unde r6

Section 27.009(b), th e court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constituti onal rights and is bro ught for a n improper purpose, including to harass or to caus e

un n ecessar y delay or to increase the cost of litigation

. ” ) (emphasis added).

We abated t he appeal , and in De cember 2020 the trial court made the follow ing finding :
Plainti ff ECo rp Interna tional did not bring the legal action to deter or prevent the m ov ing part y De fendant Robert Hay from exercising constitutional rights or for any improper purpose, inc luding to harass
or cause unnecessary delay or to increase the cost of lit igatio n.
II. A NALYSI S

I n issue 1 , Hay ar gues that the trial co urt er red in denying h is motio n to dis miss beca use (1) Hay ’ s anonymous letter to Gill Ranc h implicated his right to free s peech and right to petition , (2 ) ap pellees failed to demonstrat e their claim of

to rtiou s interference falls with in the TCPA ’ s commercial

- speech exemption , and (3) a ppe llees di d not present clea r and specific evidence supporting every element of their claim o f tortious interference

. 6

A. TCPA framework

Th e purpose of the T C PA is to i de ntif y and s ummaril y disp ose of lawsu it s designed only to chill First Amendment r i ghts, not to dismiss meritorious law suits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.002

. The TCPA c ontemplates an expedited dismissal procedur e when a “legal action” is “ba se d on or is in r esponse to a pa rty ’ s exerci se o f the rig ht of free speech, right to p e ti tion, o r r ight of

6 Instead of responding to Hay ’ s two a ppellate issues, appelle es raise six se parate iss ue s that genera lly ove rl ap with the issu es r a is ed by Hay. See Tex. R. App. P. 38. 2 ( “ When practicabl e, th e appel lee ’ s br ief should respond to th e appellant ’ s issues or p oint in the order the appellant presen t those issues or points

. ” ). To the ext ent appell ees ’ issues add ress po ints of er ror rais ed b y H ay, we will address those issues

.7

associat ion

. ” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) . The right of fre e speech and right to petition are at issue in this appeal

. T o acco mplish t hi s objective, the TCP A provides a multi

- step process for the dismissal of a “ legal

a ction ” to wh ich it applies

. Mont elongo v. Abrea , 622 S.W.3d 290, 295

– 96 (Tex. 2021)

. In the first step, the party filing a moti o n to dismiss u nder th e TCPA bears

t he burde n t o demonstrate that the “lega l acti on” is “based on or is in resp onse to,” as relevant to this appeal, the p art y ’ s exercis e of th e right of free speech and right to petition

. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.00 3( a), .005(b )

. But und er the

sec ond st ep, the court may not dismiss the action if the non

- movin g party “establ ishe s by clea r an d specific evidence a prima facie case fo r each es sential element of the claim.” Tex. C iv. Prac. & Rem. Code Ann. § 27.005(c)

. Under the third step, th e movant c an sti ll win dismiss al if he establishes “ an affirmative defen se or other grounds on which the moving party is entitled to judgment as a

matter o f law .” Id

. § 27.005(d).

In construing the TCPA and determining its applicabi lit y, we review

statutor y con struc tion i ssues de novo. See Lippi ncott v. Whisenhunt , 462 S.W. 3d 507, 509 (Tex. 20 15) (per cur iam) . Simi larly, whether th e par ties ha ve met the ir

re sp ective burdens is a quest ion of law t hat we review de novo. See Dallas
Morn ing News , Inc. v. Hall , 579 S .W.3d 370, 377 (Tex. 2019 ). Under t he de novo standard , we “make an independent dete rmi nation an d ap ply th e same standard

u sed b y the t rial court in t he first instance.” Fawcett v. Grosu , 4 98 S.W.3d 650, 656 (Tex. App.

— Houston [14 th Di st.] 2016, pet. denie d) (i nterna l quotation ma rks omitte d).

B. The TCPA a nalysis Hay argues that the trial c ourt erre d in denying his motion t o dismis s because app ellees ’ tortious interference claim is based on or in response to his8

exercise of the right t o petition and right of free s pe ech

. 1. First s tep

— the right of free speech

“ ‘Ex erc ise of the right of fre e speec h ’ a s defined in the TCPA i s a communication m ade in conne cti on with a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. § 27. 0 01( 3). The ref ore, as an initial m atter, t h ere must be

a “ communication

. ” Id

. ( right of free sp e ech is defined in T CPA to include

comm u nicat ion )

. “ Comm unic a tion ” as defi ned in t h e T CPA includ e s “ making or submitt ing of a statement or document in any form o r me dium, i ncl udin g oral, visual, written, audiovisual, or electronic .” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). Moreov er, as the supr eme court has recog nized , priv at e

com muni cati ons are covered by the TCPA , provide d that the y were made in connection with a ma tter of “ pu b lic conc ern .” Se e Ex xonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 901 (Tex. 2017)

. T he parties agr ee that Hay ’ s letter to Gill R anch is considered a

commu n ication. However, they disagr ee abou t whether it was made in connec tion with a m atter of public concern. The TCPA de f ines a ma tt er of public conce rn as

“ a statement or activity regarding: (A) a public official, public figure , or other person who has drawn substantial public atten tion d ue to t he person ’s official acts, fam e, notoriety, or celebrity; (B) a m atter of poli ti cal, soc ial, or other intere st to the communit y; or ( C) a subject of concern to the public. ” Tex. Civ. Prac . & Rem. Code Ann. § 27.001( 7 )

. Hay argues his anon ymous let ter clearly involved a matter of public concern because (1) the ac quisition of the Gi ll R anc h facility required approval from the CPUC and (2) allegation s of Thrash ’ s history revealed appelle es

were “ unreliable p urchasers of a p ubl ic utility. ” In response , appe lle es a r gue the

anon ymous package is not a matter o f public conc ern because i t was d esi gned only

to “ besmud ge a competitor and derail a private business deal. ” They further argue9

th at the letter i tself belies Ha y ’ s position because the letter was se nt to the owne r of the Gill Ranch facility , not CPUC , n or did it seek the disclosure of inf orm ation to the CPUC.

A ppelle es argue th a t the 2019 TCP A amendments and recent opinions from the suprem e court reflect a conc erted attempt to lim it the b road applicability of the TCPA and have introduce d a heighte ned standard f o r “ a m atter of public concer n

. ”
A ppellees rely on C reative Oil & Gas, LLC v. Lona Hills Ranch, LLC , in which the

s uprem e c ourt explained that not every communicati on r elated t o one of t he broa d catego rie s set out in section 27.001(7) is always a matter of p u b l ic concern. 591 S.W.3d 1 27, 137 (Tex. 2019) (interpreting prior version of TCPA)

. In examining the context in which the C reative Oil & Gas co mmunications were made , the court noted t hey wer e “priv a te busin ess communi cations to third

- party pur chasers of a single well ’ s production ” and there was no evidence “that the dispute had any relevance to the broader marketplace or otherwise coul d reasonably be

c haracterized as involving pub lic con c erns ” b ut, rath er, that “t he alleged communications were made to two private parties conc erning modest production at a single well.” Id

. at 136 . For that reason, the supreme court held that the “communications, with a limited b usiness audience concerni ng a priva t e contra ct dispu te, do not relate to a matter of public concern under the TCPA.” Id

. T h i s court has p reviou sly applied the Creative Oil & Gas analysis in holding that commu n ications d irected to an audience of existi n g cust omers or tenants

re garding a p rivate busi ness dis pute are not a matter of public co ncern for p urpos es of TCP A applicab ilit y

. Bowman v. Forti tude Consulting Gr p

. , Inc ., No. 14

- 19

- 00686

- CV, 2020 WL 3 967807, at *4 (Tex. App.

— Houston [14th Dist.] Ju ly
14 , 2020, no pet

. ) (mem. op .) ; s ee a l so Navidea Biop harm a ceut icals, Inc. v. Capital Royalty Partners II, L.P ., 14

- 18

- 00740

- CV, 202 0 WL 5087826, at *510

(Te x. App

. — Houston [14th Dist.] Aug. 28, 2020 , pet

. d enied ) (mem. op.) ( p ub licly

- trade d company failed to show by prepo nderanc e of evi de nce tha t amount owed pu rsua n t to judgm ent w as matter of public con cern for purposes of TCPA )

. Utiliz ing the curre nt statutory language , the facts before us do not so lely describe a private business dispute. The anonymous letter sen t by Hay has a direct c on nectio n to a matter of
p ub li c concern

. The joint application req uesting CPUC approval to transfer co ntrol of Gill Ranch Storage, LLC to SENSA states the “ p roposed transfer of control is in the public interest

. ” In fact , California ’ s statut e require s that a tra n sfer of control of such a utility must be approved by the CPUC

. 

### See Cal. Pub

. Util. Code § 854 ( a)

. Further, SENSA ’ s purchase of Gill Ranch Storage, LLC makes SEN SA business partners with a pu b lic utility. Hay ’s anonymous letter addre s ses t h is fact by voic ing his opinion that eCORP affiliate d companies would not be good partners for PG&E , a public ut ility

. The po tential for the public utility to be exposed to

une xp ected financial costs , safety issues , or ma terial misrepresentations by a busi n ess part ner qua lifie s as a matter o f politic al or other interest to the community or a subject of concern to th e p ublic. The fact that Ha y sent the letter to NW Natural Gas Stor age, LLC , instead of the publi c utility, is not determinative

. See Colema n , 512 S. W .3d at 901 (sta temen ts need not be public to address matter of public concern)

. The commun ication , although sent to a private party, was regardin g a matter of public concern.

Th e handling of Hay ’s letter als o supports this conclusion. NW Natural Gas Stora g e, LLC forwarde d Hay ’s letter to CPUC . After receiving th e letter, OSA, an office withi n CPUC , filed a noti ce of withdrawal of con sent to the sett lement
agreem ent

. OSA expre ssed concern about whether the acquisition of Gill Ranch
S tora ge, LLC 

### by SENSA would ne gativel y affect the Gill Ranch facility’s ability11

to 

### safely operate and maintain their 

### st orage faciliti es and ensure the 

### safety o f it s

wor kers and the 

### public as 

### require d by C alifornia law. See Cal. Pub

. Util. Code § 451.

C PUC ultimately a

pp ro ved the tra nsfer of ownership of the Gill Ranch Storage, LLC to SENSA ; h owever , becau se of the al legations in the an o n ymous let te r, SENSA provided exp anded com mercial crime in surance coverage for Gill Ranch Storage, LLC to prote ct the pub lic utility from f inancial malfeasance o f any officer of th e eCORP affiliate d companies and provi ded a dditional safety

assurance s and p rograms related to th e Gill R anc h facility

. Without regard to the merit s of the accu sation s against T hrash, i t is relevant that a public ag ency in California found Hay ’ s le tter to address a matter of pub li c concern. We c onc lude that Hay ha s demonstrated t h at appellees ’ claim of torti o us interferen ce with prospective business r elations is based on or in response to his exerci se of free

s peech. T h erefore, we need not add ress Hay ’ s argument that app ellees ’ claim of tortiou s interference is based o n or in respo nse to his exerci se of hi s r i ght to pet ition. See Tex. R. App. P. 47.1.
2. Commercial

- speech exemption The TCPA does not apply to “ a legal act i on brought against a person primarily engaged in the business of selling or leasing goods or services, if the

statem ent or con duct ar ises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intende d audience is an actual or potential buyer or customer

. ” Tex. Civ. Pra c. & Rem. Cod e Ann. § 27.0 10 (a)(2)

. Appell ees arg ued in the t rial court , and here , that the TCPA ’ s commercial

- speech exemption applies to its claim against Hay. They
argue that Hay was acting , not as an individual, but as an officer or executive of competing ven tur es , and w as ther e fore pri marily e ngaged in the busin ess of selling12

his services related to natural

- gas trading. They further assert that Hay was in a
p ositi on to p rofit from the ano nymous lette r because Hay might have “ potentially greater access to [ Gill Ranch ] and [ NW Nat ural Gas Storage ] , or by t he economic blow thi s would potentially cause to Plaintiffs, leaving more space in the industry for him and his c ompeting entitie s. ” Finally, appellee s assert the prior owner s of Gill Ranch facility are the types of custom e r s “ tha t Hay has and/or cur re ntly provides nat ural gas tra ding services to ” and that Hay is in the business of providing n atural gas tradi ng services. Howev er, accepting ap pellees arguments here would require us to impermissibly speculate beyond the recor d in fro nt of us.

The s upre me c ourt c larified the proper construction of the commercial

- sp eech exemption in Castleman v. Internet Money Ltd

. , 546 S.W.3d 684 (Te x. 2018) ( per curiam) (interpreting prior version of TCPA) . The exemption applies when: (1) the defendan t was primarily engaged in the business of selling or le asing g oods ; (2) the defen dan t made the sta tem ent or engaged in the conduct on which the clai m is based in the defendant ’ s capacity a s a seller or lessor of those goods o r services ; (3) the statement or conduct at issue arose out of a commercial transactio n invol ving the kind of go ods or services t he defendant provides ; and (4) the intended audien ce of the statement or conduct were actu al or pote ntial customers of the defe ndant for the kind of goods or services the defend ant provides

. Id

. at 688. T hus, the court c oncluded , “the comm erc ial

- speech exe mpt ion applies only to certain communications rela ted to a good, product, or service in th e marketp lace

— communications made no t as a protected exercise of fr ee speech by

an individual, but as commercial s peech which does no more than propo se a commercial t ran saction.” Id

. at 690 (internal quotation s omitt ed).13

Here, Hay sent an anonymous letter t o a compa ny that was already in a

contrac t with SENS A to transfer its ownership of Gill Ranch Storag e , LLC (and therefore its ownership and interest in the Gill Ranch facility) to SENSA. Though Hay ma y be in the bus ines s o f providing en erg y

- trading services to customers, the record does not support the conclusion that he se n t the an onymous letter in his capacity as a seller or lessor of energy

- t rading services

. It is also rel evant to our consideration that while Hay pro v ide s energy

- tradi ng services, the cont ract he intended to impact was not one for e nergy

- trading service s. It was , instead, a

c o ntract to purchase a business e ntity which owned a 75% interest in a natural

- gas storage facility. There fore, we conclude t he commercial

- spee ch ex emption is in applic a bl e to the appellee s ’ claim of tortio us interference with prospect ive b usiness relations

. B e cause Hay met this initia l bu rden under th e TCPA , the burden now shifts

to appellees to provid e clea r

- a nd

- specific evide nce of the prima fa cie case for each

es sential e lem ent on their claims to the cou r t

. Tex. Civ. Prac. & Re m. Co de Ann. § 27.005( c).

3. Second s tep

— prima facie case

T he TCPA does not define “clear and specific,” so we apply the ordinary

mean ing of those t erms: “clear” means “una mbi guous,” “sure,” o r “free f rom doubt,” and “specific” mea ns “ e xplicit” or “relating t o a p articular named thing.”
O ’ H ern v. Mughrabi , 579 S.W.3d 594, 604 (Tex. App.

— Houston [14th Dist.] 2019, no pet.) ; s ee also Code Construction Act, Tex. Gov ’ t Code Ann. §311

. 011 ( “ Words and phrases sha ll be read in conte xt and cons t rued according to the r ules of grammar and common usage

. ” ). T he supreme court has explai ned t he clear

- and

- specif

ic evidence standard requires a plaintiff to “provide enoug h detail to show the factual b asis for its claim.” B edfor d v . Spassoff

, 520 S.W.3d 901, 90414

(Tex. 2017) (p er curi am) (internal quotation omitted). W e only consider the pleadings and evidence in fav or of the plaintiff ’ s case wh en determinin g whether it

esta blished the requisite prima fa cie proof. See Genseti x, Inc. v. Baylor Coll. of Med

. , 616 S.W.3d 630, 644 ( Tex. Ap p.

— Houston [14th Dist.] 2020, pet. dism’d) ( “ We review both the p leadings and eviden ce attached to Gense tix ’ s mot ion to dismis s to determine whether Gensetix has provided ‘ enough detail to show t he factu al basis for its claim

. ’ ” ). To prevail on a cl aim for tortious interference with prospective business relatio ns , the p laintiffs must esta bli sh that : (1) a rea sonable p robability e xisted that the plaintiffs would have entered into a business re latio nship wit h a third party; (2) t he defendant either act ed with a conscious desire to prevent the relationship from occu rr ing or knew the interferen ce was certain or su bstantial ly certain t o

occur as a result of the conduct; (3) the defendant ’ s conduct was i ndependen tly tortious or unlaw f

ul; (4) the interferenc e proxi ma tely caused the plaintiffs injury; and (5) the plaintif

fs suffer ed actual damage or lo ss as a result. S ee Coinma ch Corp. v. Aspenwood A partment Corp. , 417 S.W.3d 909, 923 (Tex. 2013); Wal

- Mart Stores, I

nc. v. Sturges , 52 S. W .3d 711, 726 (Tex. 2001 ) (hold in g plaintiff must establish defendant ’ s conduct wa s independently tortious or wrongf ul, meaning defendan t ’ s condu ct “would be actionable under a recognized tort”). “Conduct that i s merely ‘sharp ’ or unfa ir is not actionable a nd cannot be the basis for an action for tortious interference with prospect i ve relations [

. ] ” St urges , 52 S.W.3d at 72 6.

a. eC EM and eCORP Internat ional Hay ar gues th at eCEM and eCORP International c annot meet their burden of

es tablishin g clear

- a nd

- specifi c evidence of the prima facie cas e for each essential element on their c laims . We agre e.15

SENSA con tract ed to purchas e Gill Ranch S t orage, LLC (and ultimately
p urchased ) , the owner and operator of the Gill Ranch facility. S ENSA , al o ng wit h eCORP Stora ge, was a part y to the joint applicatio n for transfer of control filed with the CPUC. eCEM and eCORP Internation al we re not parties to the

ac qui sition

. 7 Base d on the reco rd, eCORP International an d eCEM have not demonstrate d that a reasonable pr obability exis ted that the y would hav e entered int o a business relat i onship with NW Natural Gas Storage , LLC for the purchase of Gill Ranch Storage, LLC

. Therefore, eCEM and eC ORP International cannot establish the prima fac i e elements f o r the c laim of tortious inferenc e with prospective bu siness rel a tion s , a nd the trial court erred in denying Ha y ’ s motion

w ith respect to eCEM and eCORP International

. We sustain Hay ’ s issue one in par t.
b. SENSA

As t he facts reflect , SENSA is differently situated. Viewing the pleading s and evidence in the light mos t favorable to SE NSA , we co nclu de that they support

a ra tional in ference that : (1) Hay intended for his an onymous letter to interfere wit h SENS A ’ s prospective busin ess relations, see In re Lipsky , 460 S.W. 3d 579, 591 (Tex. 2015) (explainin g that TCPA “does not impos e an elevated evidenti ary standard or ca tego rica lly reject circumstan tial evid ence”); (2) t here was a reasonable probability th at Hay ’ s le tter interfered with those re lations by delaying the contract , see Richardson

- Eagl e, Inc. v. William M. Mercer, I n c. , 2 13 S.W.3d

7 T he joint application also identifies eCorp Storage, LLC as one of the buyer companies. However, while eCORP Storage , LLC is identified as part of t he “ eCOR P Inter national, LLC family of companies , ” the relationship betw een eCORP Storage, LLC and eCORP I n ternational
was not established. eCORP International and eCEM argue in the briefing that they would have benefited fr om the agreement between SENSA a nd NW Na tur al Gas S t orage , LLC . However, the fact they would have benefi ted from SENSA ’ s acquisition of Gi l l Ranch S torage, LLC af ter SEN S A ’ s acquisition does not establish any prima facie elements of their cl aim for tortious interference with prospective business relatio ns

.16

469, 474 ( Tex. App.

— Houston [1st Dis t.] 2006, pet. denied ) (explai ning that “causation requires that the pl aint iff b ring fort h sufficient facts so that the evidence, and logical inferences drawn from the evide nce, support a reasonable proba b ility that the defendant ’ s acts or omissions were a substanti al factor i n bringin g about injury”); and (3) SENSA suffered act ual da mage o r loss through additional attorne y ’ s fees and costs , see Coinmach Corp

. , 417 S.W.3 d at 923. However, th e requirem e nt th at Ha y ’ s conduct was ind ependent ly tortious or unl awful i s d ispute d and r eq uires further analysis.

In his mo tion to dismiss, Hay ma int ain s h is conduct in sending the letter was

no t tor tious or unlawful and that appell e e s cannot me et their burden. In r esponse,

a ppell e es assert t hree independent bas e s for determini ng Hay ’ s cond u c t was independently tortious or unlawf ul: (1) Hay ’s statem ent was false and defamatory 8 ; (2) Hay committed mail fr aud by sending the letter with eCORP International ’s

return a d dress 9 ; and ( 3) Hay committed common

- law fraud by making fraudule n t
statements

. 10 However, appellees are not required to prove an independe nt t ort. See

8 In the trial court, a ppel lees ar gue d that Hay made fals e and defamator y statem ents in the
an ony m ous letter that are su fficient to constitute independently tortious conduct , s pecifically Hay ’ s state ment that Thrash lie d profus ely in hi s statem ent to CPUC

. On a ppeal, appelle es a rgue that Hay ’s statem ent constitut e s business disparagement. A claim o f business disparagement requires

— among other elements

— that the defendant publ ished false and disparaging information abou t a plaint iff

. Forbe s Inc. v

. Granada Bioscie nces, Inc. , 124 S.W.3 d 167, 170 (Tex. 2003)

.

9 Mail fraud is a federal crime. Se e 18 U. S.C. § 1341. The two ba sic elements of a mail

- fraud offe nse are (1) the scheme to defraud and (2) causing a mailing f or the purpos e of executing the sch eme. Pereira v. U nited States , 347 U .S. 1, 8 (1954)

. Hay argu es that mail fraud is not a cau se o f action that s atisfies the requirement that defendant ’ s conduct wa s independently tortious or unlawful under st ate law because it is a f ede ral crime . W e nee d n ot cons ider this argument as SENSA s ucceeded in meeting the p rima facie elements of its cause o f action by demonstrating that Hay ’ s co nduct in m aking false and defamatory statements was ind ependently tortious

. Tex. R. App. P. 47 .1.

10 We si milarly d o not re ach whet her Hay ’ s cond uct in send ing the anonym ous letter was independ ently torti o us as common

- law frau d. Tex. R. App. P. 47.1.17

Sturges , 52 S.W.3d at 72 6. Appellees only have to prove that Hay ’ s c onduct would be actio nable unde r a recognized to r t. Id

. ( “ a plaintiff may recover for tortious in terference from a defendant who makes fraudulent statements about the plainti f f to a third person without proving that the third person was actually defrauded ” ).

I f not t rue , Hay ’s accusation that Th rash a nd SENSA made false s tatements in a governme ntal filing would support the co n cl usion such an accusation was disparagi ng or defa m atory to SENSA ’s bus i ness r ep u t ati on

. Therefore, SENSA

meet s its burden of demonstrati ng that Hay ’s conduct was independen tly torti ous if it demonstr ates that Hay ’ s stateme nt was false.

c. Prima facie evidence Hay ’ s statement was f alse and therefore tor tious
With his anonymous letter , Hay enclosed a single page from the joint applicatio n offering informat ion a bout the history and industr y experience of eCORP S torage an d the eCORP af filiated compan i es

. T here fore , t he par ties confi ne their arguments to the statem ents and r epresentation s made i n the joint application for the transfer of control of Gill R an ch S torage, LLC

. Thrash also i n clude d a veri fication of the informa tion provided in the joint application on be half of SENSA under p e nalty o f perjury. Thrash was de s cribed in the joint
ap plication as a dir ector of SENSA as well as the sole manager of eCOR P Storage

. The firs t senten ce o f Hay ’ s anonymous le tter forms the prima ry dispute between the parties : 11 “ John Thrash lies profusely i n his statement to the Califor ni a Publi c Utility Commis sion

. ” The only statement in Hay ’ s letter that addresses the

acc usat ion that Thrash had lied or mad e misr epresentations to the CPUC is the

11 T he appellees ’ response to the moti on to dismiss only addre sses th e first se nt ence of Hay ’ s letter as false

. The remai n der of the s tatement s in H ay ’ s letter do not address false statements i n th e joint application . Rather , they can best be described as providing additional infor mation that Hay believed to be relevant

.18

following: “ eCORP did not build the Katy Hub , r ather that honor goes to Wester n Gas Reso urces

. ” T he joi nt application f ile d by SENSA did not st ate that an eCORP af filiated compan y built the Ka ty Hub. Rath e r, the jo int appl ica tion states , “the eCORP Companies developed a nd operate d the highly market significant Kat y [ H ub]. ” Furth er, SENS A suppor ts i ts position with an affidavit from T hrash t hat explains why t he statement about Thrash lying in th e joint application was false:

eCO RP and Alcorn Exploration entered a joint venture to develop storage at Katy Hub

. Weste rn Gas Resource s later acquired eCORP ’ s positio n in the joint venture f or t en times its investment and contract ed eCORP to develop and build K a ty Hub Phase II

. In de t ermining whether a plaintif f presented evidence supporting a prima facie case, we consider only the plead ings and evidenc e in f avor of th e plaintiff ’ s

case. See Gens etix, Inc

. , 616 S.W.3d at 644

. We do not consider whether t he defen d ant presented evidence rebutting the plaintiff ’ s case; such ev idence is not appropriate in determining whether th e plaintiff pre sented a prima f acie c ase

. Se e T ex. Civ. Prac. & Rem. Co de A nn. § 27.005(c) (issue is whether cl aimant establis hed prim a facie c ase for each essential element )

. Because SENSA has brought forward clear

- and

- specific evidence, even if disputed, that Hay ’s sta tement

“ John T hrash li es pro fusely ” was f alse and def

am atory, we conclude that SENSA has me t its burden under the TC PA ’ s s e cond ste p.
4. Third s tep

— proof of defense as a matter of law Hay ’s burden in the third step is to establish a defense as a matter of law. See Tex. Civ. P rac. & Rem. Code Ann. § 27.005( d )

. We consider all th e evidence in determi ning whether Hay esta blished a d efensive ground

. See D Maga zine Partners, L.P. v. Rosenthal , 475 S.W.3d 470, 488 (Tex. App.

— Dallas 2015), a

ff ’ d in part, rev ’ d in part on o ther grounds , 52 9 S.W.3 d 429 (T ex. 2017)

. The parties disagree over th e his to ry of th e Katy Hub and w h at rol e , if any,19

the eCORP affiliated comp anies played in its development

. The reco rd developed as part of Hay ’ s motion to dis miss ref lects t hat the Ka ty Hub was built in th e 1 990s and did not inv ol ve any of the now

- existing eCORP affiliated companies. Hay
pro v i ded evidence reflecting that the rec ords of the Railroad Commission of Texas do not include any reference to Thrash or any eCORP affiliated compa nies

. It is

nota ble that while i n some places th e joint a pplicati on refers to “ Mem b ers of the eC O RP Companies ” wh en dis cussing the K aty Hub, the jo int application states only “ the eCORP Companies developed and operate d the highly market significant
Kat y [ H ub]. ” T h ere is a lso no indicat ion in the joint applicat ion that i nvolvemen t in the Katy Hub was l imited to principals o f eCORP affiliated companies

. As it relates to operating th e Katy Hub, though the joint application represent s that

e CORP affiliated companies previousl y o p erated the facilit y , the record developed

as part of Hay ’ s motion to dis miss ref lects the eCORP affiliated com panies were

never involved wit h the operati on of the Katy Hub

. Thr ash ’ s affi davit , produced in litigation, establishes t he e CORP affiliated compa n ies never operated the facility though princ ip al s at eCOR P Internatio nal prev iously served in manage ment roles for the entity th at did operate the Ka ty Hub. Considering the recor d est ablished b y both parties, a fact questi on has been raised whether Hay ’ s statem e nt “ John Thrash lies profusely i n his statement to t he California Public Utility Commission ” w as false

. Therefore, we con clude that Hay has not establ ished hi s defense as a matter of law . The trial court di d not err in denyi ng Hay ’ s mo t ion to dismis s with respect to SENSA ’ s claims. 12

W e overru le issue o ne in part

.

12 In both t h e t r ial court and th is court , appellees ar gue d tha t if t he TCP A req ui res dismissal of their claim again s t Hay , then the T CPA is unconstitutional because it violate s their due process rights and the Te xas Constitution ’ s “ open courts ” provision. Tex. Const. art . I. § 13

. On appeal, Hay r aises a sub

- issue t h at the TCP A does not vi olate the Texas Constitu tion. Havi n g concluded that the TCPA does not bar appellees ’ claim, we need not address this issue.20

C. Hay ’ s motion to dismiss was not f rivolous

In issue 2, Hay argu es the trial court erred in determini ng his motio n to dis miss was frivolous or file d so lely for pu rpos es of delay.

The tri al cou rt in its order denying Hay ’s motion to dis miss allow ed appellees to recover their attorney ’s fees stating that Hay ’s motion was “ frivolous and/or was solely intende d to delay. ” Hay asserts t he trial court erred in making thi s determination. H e argue s that even if we do not agree that his motion to dismiss s hould have been granted , he had a re asonable basis for seeking dismissal
pu rsuant to the TC PA. Although the cour t ’ s order does not determine the amount of fee s and cos ts recoverable by appe l lees , it made the threshold recoverability findings und er section 27.009(b) n ecessary to support an aw ard, and we may consider Hay ’ s challeng e to those findings

. Se e Patriot Contracting, LLC v. Mid

Main Propert i es, LP , No. 14

- 20

- 00724

- CV, 20 2 2 WL 1251236, at *9 (Tex.
A pp.

— Houston [14th Dist.] Apr. 28, 2022 , pet

. filed )

. If a trial court grants a motion to dismiss under the TCPA , the trial court (1) is required to award the moving par ty court costs and reasonable attorney ’ s fees incurred i n defending against the action a n d (2) may also award sancti ons against the party who brought the legal action as the court determines sufficient to deter the p arty from bringing similar actions. Tex. Civ. P rac. & R em. Code Ann. § 27.009 ( a). As discussed above, the trial court erred by n ot granting Hay ’ s motion wit h respect to eCORP Intern ational and eCEM. T herefore, Hay is entitled to an award of attorney ’ s fees and costs as to eCORP Intern a tional and eCEM

. Id

. On

r emand , the trial court shall consider an appropriate award. Id

. In c ont r ast, “ [i] f the court finds that a motion to di smiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and rea sonable attorn ey ’ s fees to the r esponding party.” Tex. Civ. Prac. & Rem.21

Cod e § 27.009(b) (emp has i s added)

. “[A] findin g that a motion to dismis s is not well taken must precede an award of the respondent ’ s atto rney ’ s fee s under Section 27.009(b ).” In re Calkin s , 580 S.W.3d 287 , 300 (Tex . App.

— Houston [1st Dist.] 2019, no pet.). We review the trial cour t ’ s decisio n to award attorney ’ s fee s under this section for an abuse of discretion. Patriot Contracti ng , 2022 WL 1251236, at *9 ; see also Sullivan v. Tex. Ethics Comm ’ n , 551 S.W. 3 d 848, 857 (Tex. A pp.

— Austin 2018, pet. denied) . “A trial cour t a buses its d iscretion if its decision ‘is arb itrary, unreasonable, or without reference to guidi ng principles.’ ” Sullivan , 551 S.W.3d at 857 (quoting Goode v. Shoukfeh , 943 S.W.2d 441, 446 ( Tex. 1997)); see also Navidea , 2020 WL 5087 826, at *6

. The te rm “ frivolous ” is not def ined in the TCPA

. But “t he word ’ s common

un derstanding contemplates that a claim or motion w ill be considered friv o lous i f it has ‘no bas i s in law or f

act’ and ‘lacks a l egal basis or legal merit.’ ” Sullivan , 551 S.W.3d at 857 (quo tin g Frivolous , W ebster ’ s Third New Int ’ l Diction ary 913 (2002 ) ; Frivolous , Bla ck ’ s Law Dictionary 739 (9th ed. 20 09)). The fact that a motion to dismiss under the TCPA is ultimat ely denied i s not sufficient, in and of itself, to support a finding that the motion was frivo lou s

. Caliber Oil & Gas, LLC v. Midland Visions 2 000 , 591 S.W.3d 226 , 244 (Tex. App.

— Eastland 201 9, no pet.) ; see also Mosaic Bay brook One LP v . Cessor , No. 14

- 19

- 00514

- CV, 2 0 2 1 WL 2656613, at *12 (Tex. App.

— Houston [14th Dist.] June 29, 2021, pet. dism ’ d ) (m em . op.) ( “ Several cou rts, including our own, have concluded that even if the TCPA ultimately does not apply, a movant ’ s motio n to dismiss m ay still be

non

- fri volous

. ” )

. I n his motion to dismiss, Hay argued the TCPA applied because the anonymous letter was an exer cise of his right to free speech and his right to petiti on. Though we express ed no op inion on whether Hay ’ s anonymous letter was22

an exercise of his rig ht to petit i on , we concluded that the letter was based on hi s right to free speech as defined in the TCPA. Further, althou gh we conclude that SENS A established a pri ma facie case for its cla im of tortious inter ference with
pro spective b usiness relations , the ev i dence of th e falsity of Hay ’ s statements in the anonymous letter wa s disputed and raised a fact issue . O n this record, we

cannot conclude that the m otion did not have a bas is in fact or la w

. Therefore, we hold the tri al court erred in its determination that Hay ’s m o tion was “ f rivolous and/or was solely intended to delay. ”

We sust ain Hay ’s sec ond issue.

III. C ONCL USION Having concluded the trial co urt did not err in denying Hay ’ s motion to d i smis s with respect to S ENSA ’ s cla im for tortious i nterference , we overrule Hay ’ s f i rst is sue in part

. We reverse the trial court ’ s order denying H ay ’ s motion to dismiss with re s pect to eCORP Internatio nal and eCEM ’ s claim fo r tortious interference aga inst Hay

. We sust ai n Hay ’s second issu e, reverse the trial court ’ s award of attorney ’ s fees and costs agains t Hay , and render judgment den ying
appe llee s ’ request for attorney ’ s fees and co sts. See S tallion Oilfield Servs. Ltd. v. Gravity Oilfie ld Servs., LLC , 592 S.W.3d 20 5, 223 (T ex. App.

— Eas tland 2019, pet. denied) (rendering judgment that non

- movant take nothing o n its request for

attorne y ’ s fees under TCPA whe n tr ial court abused its di scretion i n awarding fees under TCPA § 27.009(b)); Navid ea , 2020 WL 5087826, at *6

. W e f urther direct t he c lerk of this c ourt to issue the mandate immediately

. 13

13 Appellees filed a mo tion with this court seeking issuance of the mand a t e at the same time as the ju dgment. They argue that a lthoug h this appeal con cerns a very narr o w part of the
cas e pending in the trial court, because of TCPA ’ s mand atory stay of all trial court proceedings , the entire c ase has been stayed since Nov em be r 2020

. See Tex. Civ. Prac. & Rem . Co de A nn. § 5 1.014(b ). This court may issu e a ma ndate e arly “ if t he parties so agree, or for good cause on the motion of a party. ” Tex. R. App. P. 18.1(c). In an acce lerated appeal, as the appe al before us23

At that time , the trial cour t should conduct proceedings regarding consi deration of fees and costs pursuant to the TCPA with re s pect to eCO RP Internatio nal and eCEM ’ s cla i m fo r tortious interference ag a inst Hay

.

/s/ Charles A. S pain Justice

P an el con sists of Just i ce s Wise , Spai n , and Hassan

.

is, t his co urt m ay issue the mandate with its ju dgme nt o r delay the ma nda te until the appeal is finally d isposed of. Tex. R. App . P. 18. 6. Hay has filed no opposition to a ppellee s ’ motion to expe dite the mandate. Given the cir cumstances of this case and the stay of t he t r ial

- court proceedings , we grant appe llee s ’ moti on

.