### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00524

- CV

Cobb Development and Vance Cobb, Appellant s

v. Timothy Francis McCabe, Appellee

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -21-000829, THE HONORABLE JAN SOIFER , JUDG E PRESIDING

M E M O R A N D U M O P I N I O N

This dispute concerns accusations of fraud le vied by a property developer against a competitor. C obb Development and Vance Cobb (collectively, Cobb) sued
Timo thy Francis McCabe for tortious interfere nce wi th current and prospective contracts

. T he
trial court dismissed the clai ms pursuant to the Texas C itizens ’ Participation Act (TCPA) and awarded attorney ’ s fees and sanctions to McCabe

. See ge n erally Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. We aff irm.2 B ACKG ROUND 1
M cCabe , a longtime Au s tin property devel oper , has recently focused on developing residential pr operties o n For d Stree t

. In 2020, he purchased two houses there and
had a contract pending on 2022 Ford Street

. M c Cabe discussed his plans

— i n cl u d ing wh at he paid for the other properties an d what he intended t o pay for 2022 Ford Street

— wit h Cobb

. Cobb is also a residential property developer working in the same general area of Austin

. In November of 202 0, McCabe learned that Compass Bank ha d li s te d 202 4 Ford
Stree t

— next door t o 2022 Fo rd

— f or sale. McCabe learned from a realtor at the bank that the owner had already accepted an offer and the property w as off the market. Matthew Robins ,

an other realtor at Compass , confirmed that he and Cobb w e re in volved in the pur chase. After

s peaking wit h Ro bins, McCabe conf ronted Cobb and accused him of buying the property in a

“ ba ckroom deal ” with Robins

. C obb said that his c li en t , Gareth Tilley, had purchased the
property for $ 75 0,00 0 , a pr ice that McC a b e a ss erts was $ 75,00 0 over the mark et price. Th is allegedly resulted in McCab e losing the contract for 2022 F ord because the owner wanted a
h igher p rice.
On November 14, 2020, McCabe email ed Cobb that he was declaring “Wor l d
War ” betwee n the m
. Cob b all e g es in his petition that McCabe then “ embarked on an aggressive ongoing intimidation campaign by sending dozens of false, malicious, and accusatory emails to
Cobb and others ” in an “ effort to prevent Cobb’s construct ion projects from progres sin g
. ” A t
fir s t , M cC abe accus ed Cobb of violating Tex as R e al Estate Commission rules , doing poor

1 We dra w our r ecitati on o f the backgr ound f act s fro m the pleadin g s a nd aff idavits,
w hi c h we s et out in the lig h t m ost fav orable to the non movan t

. S e e , e.g

. , RigU p, I nc. v. Sierra H

amil to n, LLC , 61 3 S.W

. 3d 177, 182 (Tex

. App.

— Aus tin 20 20 , no pe t .) ( explaining that co urt r ev i ewing TCPA motion “ vi e ws th e plead ings a n d t h e a ffid av its in t he l ight most fa vor abl e to t he nonmovant ” ).3 quality wor k , and ha ving a sub stance abus e problem

. 2 For exam ple, on Decembe r 21, 2020,
McCabe sent the following email to Vince Heinz, a realtor at Compass Ban k , a nd Cobb c li e nt Joseph Pantaleo , Jr. :
Subje ct: Cobb Dev elopment? When is a hired hand a “Developer” Au stin, Joe, Vin ce ( kn ow it all in d esign meetin gs ) A Developer ha s money in the game

- a hired hand none. Cobb is a hired hand. H e is not a develop er. See below

- ma y be not a very good builder. Jess ie and its b roken foundation stagnates. A bullshit artist like Mat Robins ma rk et s S of O ltor f as Bo uldin

. . . . see S v 4th MLS Che ck out the quality on Joey P ’ s and Vince ’ s Oxford build in Zilke r. TROUBLE! Ryan J ame s - Und e r r i gh t this junk. Under Contract for ho w much longe r?
Attached to the email is a picture of the exterior of a re sid en ce that Co bb a llegedl y built

. McCabe, mean while, discovered what he believed to be mortgage fraud by Cobb
and his associat e s. I n ess e n ce , M cC a be alleged that Cobb and his asso ciat es fraudulently obtained homestead mortgages for Cobb ’ s clients

. Even though home stead mortgages require
the borrower to live on the property , each prope rty was alleg e d ly pu t up for sale without the
borro wer e v er resid ing there or intend ing to reside there

. Because homestead mortgages have
low interest r ates and require less money down , Cobb ’s clients could pay higher prices for land

. T he others all egedly involved i n t h e sc hem e we re Ryan James, a l oan officer at Fir s t United
Bank ; and Robins and Heinz, who are realtors at Compass Bank. The clien ts who supposedly
be n e fited from this scheme incl uded Till e y, Pantaleo , an d Brett Marlier.

I n the after noon of December 29, 2 0 2 0 , M cCab e em aile d Marl ier that McCab e
in t en ded to meet with James the f ollowing M onday to reach a “ work able solution ” and instructed
Marl i er to “ Put a collar on V ance Cobb in the mean time. If he or any of yo ur gang contacts my family

- big issue. ” App r o xi ma tely two hours later, McCabe emailed hi m agai n to “ Collar

2 W e rep roduce McCabe ’ s emails exactly as they appear in t h e record

.4 Vance. Tonight

- or I will call Ron and let him know your bank fraud actions to date with
evidence.

- bury Ryan James and erase your profits deal on Oxford. ” The same night, McCabe

sent an e m a i l to Greg M a s sey, the president of F i rst Un ited B a nk ; Jam es ; Pantaleo ; Marl ier ; a nd Jeff Youngblood with the FBI :

Re: H o mestead Mortgage Fr au d

– A conspira cy between Fi rst United Austin Loan Office, Cr edit wor thy individuals, Real Estate Br ok ers and a b u ilde r

– with zero intention of a home ste ad.
M r. Ma ssey, Mr James, F.B .I

- Special Ag ent Jeff Youngblood (BCC) Gentlemen,
M r . Massey, I endeavo r to eng age your office, The F.B.I and the Texas Attorney Gene rals off ice into an investigation of yo ur Banks loa n s pra ctices i n Austin, Texas. A numbe r - o f Homest ead Conventional Mo rtgages with Construction Addendums have been p ut out there by your Bank

- in Aus tin

- whe re I develop homes

- and NONE of them have any int enti on of fulfilling the Contractua l Obligat ion s of t he Borro wer. - except build and se ll

– see at tachments

- THIS WE EK

- foundati on has not even been poured [.] They borrow t he money

- build sp ec and s ell

- an d rely on the sell provision at the Banks disc reti on t o get out of the occupancy pro v ision

- s e e att ached Never occupy - never have Ryan J ames - your Loan Officer

- sh ould be able to lay out his current 78704 Clients, hi s previous history w it h thos e Client s at UFCU and his present First United Clients Ple ase look into this

. [ 3 ]

O n Decembe r 30, 2 02 0 , M cCa be emailed Robins and copied Cob b , Ma rl ier,
J ames , and Heinz:

Matt Robins

- There i s nothing more that I would like to see is you on the s treet. You h ave sown no t hing but bad seeds with introduc tion of Ga reth and others to the marketplace

- AND d rag g i ng m y good friend Vance Cobb along

- - Ma tt

- you are under criminal investiga tion I am going to stand up f or Vance

- Ryan and others

- Gonna l et you twist in the win d

- you are th e smartest guy in t he room

- the m astermind

- legend in your own mind

. . . . . I f yo u had nothing to hide

- why did y our online p resence change today? As well as other s sites. Onwards

3 A lthough McCabe sent m u lt iple email s that date, w e refer to the e ma i l sent to Massey as th e Dece m ber 29 , 2020 ema il

.5 In Fe brua ry 2021, C obb sued Mc Cabe for tortious int erference w i th existing a nd prospective cont racts and sought injunctive relief

. McCabe f il ed a mot i o n to dismiss under the
TCPA an d a tt a ched his swor n declaration and suppor ting docum ents

. Cobb filed a response an d
attached his affidavit and hundreds of Mc Cabe ’s e mails

. Cobb alleges in his affidavit that McCabe interfered with two existing contract s :

a c on t r act with Michael Stewa rd 4 t o construc t a home at 2010 De Verne and one with
Laura P antaleo, the mother of existing client Jo seph Pantale o, Jr. , to construct a home at
2901 C edarview

. Regard ing t he D e Verne c on t ract, Cobb sta te s tha t he and S teward agre ed

t ha t Cobb

would build a ho us e f or him at 2010 De Ver n e and that I woul d wor k with him and his arc hitect to hav e plans prepared for t he house I would build for him. Soon aft er th at lunch meetin g , S teward ’s ar chite c t sent me plans fo r 2010 De Verne and I pr e pa r e d a b udget based off h is pl ans. Stewa rd a greed t o pay me a $120,00 0 bui lder fee for building the house dep icted in the plans at 2010 De Verne. I understand that he app lied fo r financing w i th First Unite d Ban k and once that had been completed, his loa n o f f icer, Ryan James cont ac ted me and req uest ed that I submit the budg et an d plans for the home I had agreed t o build for him to proceed through the appraisal process

. A t ru e and correct co py of th e plan s and bu dget submitted to F irst United Bank in c o nn e cti o n wit h my agre ement w it h S teward to b uild his house at 2010 De Verne are attached as Exhibit I

. Follow ing McCabe’s December 29, 2020 email detailed above

. . . I was p ro mp tly removed as a n approved b uilder a nd First United Ban k refused to proceed w it h fi n ancin g Steward ’s “ Ste wa rd ” lot (and t ear down house) located at 2010 De Verne, as well
as con struction financing of the home I had agreed to build for Steward

. Ryan James told [Cobb] that McCabe’s communications alleging that I was involved in hom este ad m ortgage fraud had imm ed iat ely resulte d in my removal from First United Bank’s approved builder list. James then contacted Steward and let him know that First United Bank could not proceed with financing the lot and build at 2010 De Verne as a resul t of Mc C abe’s disparaging an d fal se claims th at I was involved in homestead mortgage fraud

.

4 S t e w a r d ’ s last name is sp elled “ Stewart ” in s ev era l parts of Cobb ’ s aff idavit b ut

“ Steward ” in Cobb ’ s brief

. Cobb states in his reply that the correct spellin g i s Steward, so w e have c orrected the spe l ling in the affidavit accordingly.6 This caused my agreement with Stewar d to build a house for him based on the plans and budget detailed in Exhibit I on 2010 De Verne to end because h is financing wou ld n ot b e approved [.]
( emp ha si s a dded)

. R egar din g th e Cedar view c o n tract , Cobb states:

My cl ient, Joe Pantaleo, Jr. initially c on tacte d me and told me that his mother, Laura Panta l eo wanted to buil d a h ome in Austi n, Texas. Following th is discussion and conversations with Ms. Pan t a le o, I contacted an a rc hitect, Art hu r Fu rman with S ide An gle Side Architects, and he prep ared plans fo r Ms. Pantaleo’s ho me. Once t he plans were comple t e and reviewed by Ms. Pantaleo and I prepared a budget, s he agreed that I would build her a ho me a t 2 9 0 1 Ced a rview. A true an d correct c op y of the plans and bu dget a re attached as Exhibit J. She then c o nt acted First United to arrange financing and I subs e quently sent the plans and budget to Ryan James.
Followin g McCabe’s December 29, 2020 email d etai led a bo ve an d attached as E xh ibit D, I w a s pr omptly remov ed as an appro ved builder and First Un ited Bank
r ef used to proceed wit h financing Ms. Pantaleo’s prop e rty located at 29 01 Ce darview, as well as construction fi nancing of the home I had agreed to buil d f o r M s. Pa ntaleo. Ryan James told me t hat McCabe’s communications alleging that I was involved in homestead mortgage fraud had immediately resulted in my removal from First United Bank’s approved builder list. James then contacted Ms. Pantaleo and let her k no w t hat First United Bank could not pro c eed with financing the lot and build at 2901 Cedarview as a result of McCabe’s disparaging and false claims that I was involved in homestead mortgage fraud. After McCabe’s false and disparaging claims to the ban k , Ms. Pa ntaleo cancell ed
our agreemen t to build a house for her based on the plans and budget detailed in Exhibit J on 2901 Cedarview because her financing would not be approved as a direct and proximate cause of McCabe causing First United Bank to rem ove m e fr om the approved b uilder list fol lowi ng his false and disparaging homestead mortgage fraud communications with First United Bank’s president/CEO Greg Massey and loan officer, Ryan James.
(emphasis added). McCabe objected to the italicized portions a s h ears ay. M c Ca b e f i led a
response and attached hi s sworn d ec laration. On May 20, 2021, the trial court iss ued an
inter locutory order s u staining the objectio ns an d grant ing t h e motion to dismiss

.7 McCabe th en asked t he trial court to award him $181,204.32 i n att orn e y ’ s f ee s ,

a dditional c ourt co sts, and no less than $ 1 5 0,00 0 i n sa ncti ons. Cobb filed a res ponse arguing the requested f ees were excessive an d the sanct ions unwarranted . Cobb also filed a motion for
reconsideration and attached emails and te xts that M cCabe s e nt a ft e r th e trial court ’ s
interlocu t ory order

. The trial court held a hea ring on b o th motions and later signed a judgment granti ng the motion to d ismiss and a warding McCabe $ 150,000 in attorney ’ s fees, c onditional

appe llate fees, and $ 6 0 ,000 in s anction s
. T his app eal ensued.

L EGAL STANDARDS
The TCPA “ protec ts sp eech on matte rs of public conce rn by authorizing cou rt s

to conduct an early a nd expe dite d revie w o f the legal merit of claims that seek to stifle speech through the imposition of civil l i a bility a n d d ama g es. ” Lilith Fund for Reprod. Equity

v. D ickson , 662 S.W.3d 355, 363 (Tex. 2023)

. To accomplish this objecti ve , the TCPA provides
a three

- step process for the dismissal of any “ legal action ” to which i t appli e s. Montelongo

v. Abrea , 622 S .W.3d 2 90, 2 96 (Tex . 2021)

. First, the mov ant must demon strate that the “ legal
action ” against it is “ based on or is in response t o ” the movant ’s “ exercise of the right of free speech, rig ht to petition, or right of a ssociat i on
. ” T ex. Civ. Prac. & Rem. C ode § 2 7.003 (a ). I f
th e mo v ant meets th at b urde n, the no nmovant may avoid dismissal by establishing “ by clear an d specific evi dence a prima facie case for each essentia l element of the claim in question. ” Id. § 27.00 5 (c). A lt e rnativel y, the nonmovant ma y demon strat e that one o f th e TCPA ’ s exempti ons

a

ppl ies. See i d

. § 27.0 10( a ). If the TC PA applies and the nonmovant establish es a prima f ace

case , the burden shifts bac k t o the movant to establ ish “ an affi r m at ive defense or o ther grounds
on which the m ov ing par ty i s entitl ed to ju dgment as a mat ter of law. ” I d. § 27.005 (d).8 In deciding “ whether a legal action is subject to or should be dismissed under this chapte r, the court shall consider the pleading s , e vide nce a c o urt could consider under Rule 1 66a,
T exas Ru l es of C ivil Pro cedure, and sup por t ing and opp osin g affidavits stating the facts on which the liability or defense is based. ” I d. § 27.006 (a). The c ourt “ vie ws the pleadings and the
affidavits i n th e li ght mos t favorable to the nonmovant. ” RigUp, I n c. v

. Sierra Hamilto n, LLC , 613 S.W .3d 177, 18 2 (T e x. App.

— Austin 2020, no pet.)

. We review de nov o whether e ac h party
met it s b u rden

. Crossroads Cattle Co., Ltd . v. AGEX Tr a ding, LLC , 6 07 S.W.3d 98 , 10 1 (T ex. App

. — Austin 2020, no p et.)

.

DISCU SSI ON
Co bb arg u es in six issues , which we have r eordered an d re numbered , that (1) McCabe failed to demo ns trate th at t h e TCPA applies to Cobb ’ s claims or , in t he alternative , tha t (2) the commercia l

- spee ch except ion a pp lies

. I f w e disagree, Cobb argue s t ha t (3) he
estab l ished a prima facie case for both cla i m s , (4 ) McCabe fai led to establish the defense of justification , (5) the award of fees and sanc ti o ns should be set aside, an d ( 6) the trial court err ed by implic it ly den ying Co b b ’ s motion for reconsidera tion.

Ap plica ti on
F irst, Cobb argues t h at McCabe faile d t o show tha t the TCPA applies

. See Tex.
Civ. Prac. & Rem. Code § 27. 0 0 3 ( a )

. McCab e respond s that the TCPA applies b ecause Cobb ’ s
cl aims ar ise from McCabe ’ s exercise o f the r i ght of free speech as defined in the TC PA. 5

5 McCabe als o a lle ge s t ha t Cobb’s claims implicate M cCab e’s r ig h t to pet iti on
. See Tex. Ci v. P rac. & Rem. Cod e § 27 .00 1( 4 ) (defining exerci se of right to petition ). W e do no t a d dr ess tha t a rgument because we con clud e t h at Cobb’s claim s arise from McCab e ’s ex ercise of the ri g h t to f re e s peec h

. See Te x. R. A pp. P. 47

. 1 ( “ T he court o f appeals mu st hand d own a writ ten9 T h e part ies first join issue over w hether McCabe must show all his

com munications are protected by the TCPA

. Cobb argues that we must “ review each act separately to d etermine whether the TCPA may apply to the resulting claims ” and that some of

M cCabe ’ s com m unications are not protected by t he TCPA

. In other words, he asserts that the
trial court should have denied the TCPA motion unless all of McCabe ’ s communications are protected. He argues that Mont e longo , wh ich inte r preted the mean ing of “ c a use of action ” in the
TCPA , compe l s this conc lusion. Monte longo , however, explained that “ a cause of action
consists n ot merely of the alleged facts, but also the elements tho se facts must establish to e ntitle

t he claim ant to rel i ef

. ” 6 2 2 S .W.3d at 3 0 1. In ot h e r wo rds, “ a cause of action ” does not consist
of all the facts alleged in a pleading but sp ecifically those that en title the claimant to reli ef under a legal theory

. See id. Thus, e ven if Cob b is corr e c t that some of McCabe ’ s com mun ications are

n ot pro t e cted by the TCP A, the question is whe ther the TCPA protects the communications that allegedly entitle Cobb to reli e f on his tortious

- interferen ce claims. See id. at 3 01 ( “ [ T ] he TCPA provides for dismis s i ng a ‘ legal action, ’ a n d court s cannot dism i ss a f a ct or facts. ” (internal
citation omitt ed)) ; Union Pac. R.R. Co. v. Dorsey , 651 S.W.3d 692, 695 (Tex. A pp.

— Ho uston [1 4th Dist.] 2022, no p et.) ( “ Dismissal u nder the TC PA is determined on a claim

- by

- claim
b a sis. ” ) ; Elite Auto Bo d y LLC v. Autocra ft Bo d ywerks , Inc. , 520 S.W.3d 1 91, 206 ( Tex. App.

— Austin 2017, pet. dism ’d) (conc luding nonmovant ’ s proof fell sh o rt of “ t he ele ment

- by

- el ement,
clai m - by

- c laim exactit ud e require d by the TCPA ” ).
Tur ning to that ques t i on, t he TCPA defines t h e e xerc ise o f t he ri g ht to f ree s peech

as “ a c ommunication made in connection with a m atter of public c oncern
. ” Tex. Civ . Prac. &

opini on th at is as brief a s practicable but that addre sses every is sue rai se d and necessary to fina l dis p o s ition of the ap peal. ” )

.10 Rem. Code § 2 7.001 (3 )

. A “ matter of p ub lic conce rn ” means “ a statement or activi ty regarding , ”

as r e l evant here, “ a matter o f p olit ical , so cial, or oth e r i nt erest to the community ” or “ a sub ject of

concern to t he public. ” Id. § 27.001 ( 7)(B ), (C ). In a pplyin g th ese d efini tions , we must “ not ig nore the common meaning of the words bein g defined. ” Creati v e Oil & Gas, LLC v. Lon a
Hi lls Ranc h , L LC , 5 9 1 S .W. 3 d 1 27 , 135 (Tex. 2019) . The phrase “ ‘ matt er of public con cern ’ commonly refers to matters ‘ o f poli ti cal, so cial, or other con cern to the com mu nity , ’ as opposed

to purely private matte rs. ” Id. (quoting B r ady v. Klentzman , 515 S .W. 3d 8 78, 8 84 (Tex. 201 7) )

. Thus, “ [t]o be a m atter of pub li c co ncern , a c laim must hav e p ubli c relevance beyond the
interests of the par ties. ” Szymonek v. Guzman , 641 S.W. 3d 553, 565 (Tex. App.

— Au stin 2022, pet. denied)

. C obb a rgues that the TCPA does n o t a pply because M c Cabe ’ s “ entirely
unfounded ” statements we re made “ for harassing and antic ompetitive purposes ” and have no relevance beyond t he pecuniary intere sts of the parties. See , e. g., Crea tive Oil & Gas , 591 S.W.3d at 1 3 6 (holding that suit over “ pri vate bus ines s c ommuni c ations to third

- party purchasers of a sing le well ’ s production ” did not involve matt er of publ ic concern ) ; B owman

v. Fo rtitude Consultin g Gr p

. , Inc., No. 14

- 19

- 00686

- CV, 2 020 WL 3967807 , at * 4 (Tex. Ap p
. — Houston [14th Dist.] July 14, 202 0, n o pe t.) (mem. o p. ) (concluding TCPA did not app ly to

com municatio ns that “ related solely to the pe cuniary interests of [the parties ] and had

no pot ential impa ct on the broa der marketp lace or a publ ic audience of pote n t ia l buyers or
sel l e rs ” )

. H e ar gues that i t “ s trains credulity ” to consider McCabe ’ s “ hara s sing conduct and
abusive comments ” to “ Cob b, his wife, other family member s, and dozens of his clients and
business col leagues ” as hav ing “any d irect relationship” t o a matter of public conce r n
. M cCa be11 r esp ond s that c riminal activity is a matter of publi c concern and that his emails , especially the
December 29, 2020 ema il , allege tha t Cobb and other s are involved in fraud

. We agree w i th M c Ca be

. M atter s of p ublic c o n cern include , among other

t hing s, “commiss ion of a c r ime

. ” Br ady , 515 S.W.3d at 884 ; see Ka dow v. Gr aue rh olz , No. 02

- 20

- 00044

- CV, 20 21 WL 733 302, at *3 (T ex. App.

— Fort Wo rth Feb. 25, 202 1, no pet.) (me m. op.) (o bserving th at “ the commi ssion of a crime i s a matter of public concern ” ) ;
M ediaOne, L. L.C

. v. He n derson , 5 92 S.W.3 d 933, 940 (Tex. App

. — Tyler 201 9, pet. denied) (ho lding publication “ rep orting alleged criminal activ ity in th e commu nity ” is matter
of publi c conc ern)

. The su preme court ’ s decisio n in Adams v. Starside Cu s tom Builde rs, L LC , 547 S

. W .3d 8 9 0 ( Tex. 2018) i s instructive

. Th at a ppeal arose from a long

- running dispute
betwee n A dams , the developer of the nei ghborhood wh ere he live d , a nd the hom eowners’

as soci ati on con trolled b y the develo p e r
. Id. at 892

. The de v eloper sue d Ada ms over s t atemen t s
i n ema ils and a blog accusing t he d evelo per and its owners o f crimes and other misc onduct.
Id. at 893

. T he s upreme court con cluded that the “ allegati on that a ne ighb orhood developer and
the HOA i t control s have chopp ed d o wn reside nts ’ tr ees, ge n er all y made life miserable for t he
reside nts , and engaged in unspeci fied other cor r upt or criminal activity is of p ubli c concern for
th e residents of the neighb orh ood. ” Id. at 897

. 6 The court stressed th a t “ whether Ada ms ’ s

6 T he supr em e cou rt decided Ad a m s u nder a ve rsion o f the T CPA th at defi ne d a mat te r of public con cern as a com m uni cation per ta i nin g to , i nter alia, “ e n vironmenta l, economi c, or com munity we l l

- being ” or “ a good , pr oduct, or s ervice i n the mark etp la ce. ” Act of Ma y 24, 2011, 82 nd Leg ., R .S

. , ch. 34 1, § 2 , se c
. 27

. 001 (7) ( B ), ( E ) , 20 1 1 Tex . Ge n . Laws 961, 96 2

. T he legis latu re s ubseq uentl y eli minated bot h parts of the definition

. See Act of Ma y 1 7 , 2 01 9 , 86 th Leg., R.S., ch. 378 , H.B. 2 730, § 11 , 2019 Tex. Gen. Laws 684, 687 ( effective Sep t

. 1, 20 1 9)

. Adams remain s in structive beca u se the s u pr eme c ourt m a d e clea r that Adams ’ all egatio n w as a m atter of p ubl i c co n cern even if view ed “ a part from the non - exclus ive statut ory li s t

. ” A da m s v. St arside Custom Build e r

s, LL C , 547 S.W.3 d 890, 896 (T e x
. 20 18 ) ; see Kadow v. G r auer holz , N o . 02

- 2 0

- 0 0044

- C V , 2021 WL 733 3 0 2 , at * 3 n.6 ( Tex. App.

— Fort12 color f u l all eg at ions were va li d , part l y v alid, or completely co ncocted b y a disgruntled resident
wi th an axe to g rind i s not the question before u s
. ” I d.
He re, McCa be alleg ed in the Decembe r 2 9 em ail t hat Cobb worked with bank employe e s and re a l tors to enable his client s to borrow mo ne y und er false pretenses . Cobb argues
that McCabe made t hese allegations to gain a competitive advantag e and stresses t hat McCabe purchase d the De Vern e propert y in January 20 21 after Steward terminated h i s deal with Cobb

. But the fact tha t a speaker ma y gain a n advantage in a private dispute by c ommunicating with third pa rties does not r emove the com munications from t he protection of the TCPA. The issue,

ra the r, i s whet her the content of the communicati o n s ha s “ public relevan c e beyond the in terests
of th e par ti es
. ” Szymonek , 641 S.W.3d at 565

. M c Cabe ’ s allegat ions are of c once rn to others
who apply to the bank to fi nance re al est at e pr ojects a s well as p roperty owners on Ford Street affected by the alleg ed art i ficial elevat i on in prices

. See Adams , 5 47 S.W

. 3d at 896

– 97

. W hether the allegations are “ v alid, partly valid, or completely concocted ” by McCabe because
he ha s an “ axe to grind ” with Cobb is not t he question b ef or e us
. S ee id. at 8 97

. “ The ques tion

a t this stage i s whether [Cob b ’ s ] challenge d state me nts involve a ‘ matter of public conc ern ’ as defined by the TCPA. ” See id. For the reasons stated, McCabe ’ s sta tements a re on a matter of public concern even if he made them “ for haras sing and antic ompeti t ive purposes ” as McCabe
all eges
. 7 We con cl ude t ha t McCabe has es tablished that the TC PA ap plies to Cobb ’ s c auses o f

act ion and overrule Cobb ’ s f irst issue

.

Wor th F eb . 25, 2021 , n o pet

. ) (me m. op.) ( cas es d e cided under p rior versio n remain ed instr u c t i ve

“ b e caus e t he definition of “m a t ter o f publi c con cern” applica b l e he re is broader than t he d efinition unde r t he p ri o r versi on ” ).

7 Cobb e q u ates this case with Slo at v

. Rathbun , w her e w e c onc lud ed that certa in

“ har assing ” communic ations were not matte r s o f pub l ic c oncern
. 513 S.W.3d 50 0 ( Tex. App.

—13 Co mmer cial Speech Exemption
Cobb argues in his second issu e that the trial court erred b ecause he showed that
the commerci al

- sp e ech exem ption a pplies

. The T CPA doe s not apply to “ a legal a ction b rought a gainst a pe rson primarily engaged in the business of selling or leasing goods or servic es, if the statement o r c onduct arises

o ut of the sal e or le a se of go ods, services, or a n ins urance pr od uct, insur a nc e ser vices, or a

c ommercial tr ansacti on in w hich the intend ed a udience is an actual or potential buyer or

customer

. ” Tex. Civ. P rac. & Rem . C ode § 2 7.010 (a)( 2)

. T his exception a pplies only t o

commu n ications “ related to a good , pro duct, or servic e in th e marke tplace ” t hat do “ no mor e than pr opose a commerc ial tra nsac tion. ” Castleman v. Internet Money Ltd. , 546 S.W.3d 684, 690 (Tex . 2018)

. The exempt ion applies wh e n four elements are met. F i r st, “ t h e defend ant was prima rily e ngage d i n the busine s s of s el ling or l easing go ods

. ” Id. a t 688. Secon d, “ the
d efendan t ma de the statement or engaged in the conduct on which the claim i s b ased i n th e
d efendan t ’ s capacity a s a seller or le ssor of those goods o r servic es
. ” Id. Th ird, “ the s t at ement

A usti n 2015, pet. d i sm ’d)

. Th at case involved actions by memb e r s of the C hurch of Sci en tolog y ag ain two forme r memb ers of th e church. Id

. at 5 06. R ath bun sued ove r church members “standing in protest near R at hb un ’ s pro perty, holding signs o f prote s t, att empt ing to speak t o p a ss ers - by or those entering or leaving t h e propert y about the im pr o priet y of Marty Rathb un ’ s a cti viti es , and film ing Marty Rathb un and others i n public places

. ” Id. This was allegedly “ pa rt of the production of a docume nt ary o r video abo ut issues of p o te nti al or public impor tance , including im p o r tance t o Scientologis ts

. ” Id

. The alleged issue o f p ublic concer n wa s t h at th e Rath burns were supp osedly “ engaged in the independent practic e of S cie n tolo gy outside the auspice s of th e Churc h of Scientology

. ” I d. at 507 n.5. We concluded that “ it st r a i ns cred ulity to consi de r the harassing conduct that Ra thbun complai ns of a s hav ing an y dire ct relati onship to this issue, to the extent it cou l d e ve n b e con sidered a matter of pu bl ic co n cern i n it s own right. ” Id

. a t 508. Cobb argues that McCabe ’ s beh a v i or is s imilar because h e, for example, allegedly ph ysi cally obstruc ted ac tivity at on e of C o bb ’ s bui lding sites

. Even if some of McCabe ’ s beh a v io r is s imil ar to th e challenged c onduct i n Sloa t , tha t behavior i s n o t the basis of Cobb ’ s claim s
. Rather, C o bb claim s arise fro m McCab e ’ s allegation s that C obb and his business
a sso ciat es fraudulen tly obtai ned ho me ste ad mortgag es. These co mmunications ar e much mor e cl osely con n ected to a matt e r of p ublic concern th an t h o se in Sloat

.14 or con d u ct at issue aros e out of a commercial transa ction involving t he ki nd o f goods or services
the defenda nt provides

. ” Id. Fourth, the “ in tended aud ien ce of t he statement o r conduct were

a ctual or pote n tial c u stomers of the defend ant f o r the ki nd of goods o r serv ices the de fendant

p rovides. ” I d

. “ The burde n of esta blishin g th e commercial

- speech exemption is on the nonmovant, the party r ely ing on t he exe mption. ” RigUp , 613 S .W.3d at 187

. McCabe, like Co bb, is undisputedly primarily in the business of sell i ng resi dentia l development services. The third element r equires that the statement arise “ out of a commercial

transa ction involving t he ki nd o f goods or services the defenda nt provides

. ” Castl e man , 546 S.W.3d at 690

. To meet this e lement, “ the c halleng e d state ment or conduct must be made

‘ for the purpose of s ecuring sales i n the goods or services of the person making the statement.’ ”
Rose v. Sci entific Mach. & Welding, Inc. , No. 03

- 18

- 0 0721

- C V , 2019 WL 2588512, at *6 (Tex. App.

— Aus tin June 25, 2 019, no pet.) ( mem. op.) (quoting Toth v. Sea rs Home Improvement
Pro d s

. , Inc. , 557 S .W.3d 142, 154 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) ) ; see
Novosad v. LSG Vodka LLC , No. 03

- 18

- 00804

- CV, 20 2 0 WL 4726599, at *6 (Tex. App.

— Austin Jul y 31, 2020, no pet.) ( mem. op .) ( explaining that thi rd Cast leman element “ can be
restated as asking, relevan t here, whether the statement or conduct at issue arose out of the sale
of services that the defenda nt pro v ides ” ). C ob b argues that the record sho w s that he and
McCabe a re “ di r ect competitors ” and that this disput e began w hen one of Cobb ’ s client s purchas ed a house next to on e that McCabe w a nted to bu y. But McCabe ’ s statements pertain to
Cobb ’ s sale of resid e n tial development ser vices and whethe r Co bb violated st ate and federal
laws in providing those servi ces
. Co bb does n o t identi f y a ny sta tem e nt by McCabe th at

arose out of McCabe ’ s sale of residential development s ervices. We conclude th at Cobb has

not me t his burden to show that the challenged s tatement s aros e out o f the sa le of goo d s or15 service s that M cCa be provides

. See MacFa r land v. Le

- Ve l Brands LLC , No. 05

- 1 6

- 00672

- CV,
201 7 WL 1089684, at *9 (Tex. App.

— Dallas Mar. 23, 2017, no pet. ) ( m em. o p.) ( con cludin g exemption not applicable be c ause de fendant ’ s s tateme nt w a s “not about ” defendan t ’s busine ss of

se lling servic es ) ; Backes v. Misko , 486 S.W.3d 7, 23 (Tex. A p p.

— Dallas 2 015, pe t

. denied) ( c o ncluding third element was not sat isfied becaus e defenda nt ’ s s tat e m e nts about competitor made no refere nce t o defen d ant ’ s b u s in ess) ; Kinney v. B CG Att ’ y Search, Inc. , No. 03

- 12

- 00579

- CV , 2014 WL 1432012, at *6 (Tex. App.

— Austin Apr. 11, 2014, pet. denied) (mem. op.). Alternatively, Cobb has n ot sati sfied the fou rth Ca s tle man element

. That element
is satisf ied when the “ i n t ende d aud ien ce of t he statement or conduct we re actual or pote n tial

customers of the defend ant f or the ki nd of goods or services the de fendant p rovides. ”
546 S.W.3d a t 690

. For purposes of t he com m ercial

- speech exception, a n “actual or p otential

custo mer ” is “ someon e who buys goods or services

. ” M oli na Healthcare, Inc. v. State ex rel.
Thurmond , No. 03

- 20

- 00077

- CV, 20 20 WL 7233609, at * 4 (Tex. App.

— Austin Dec. 9, 2020, pet. de ni ed) (mem. op. )

. Co b b s ent the Decembe r 29, 2020 , email to G reg M a s sey , the pr esi d ent
of First U nited Bank ; and James, a lo an officer there ; and copied Cobb clients Joseph Pantaleo
and Marlier

. He se nt the December 30 , 2020 email ( at issue in his claim for tortious

- int erfere n ce
with a prospect iv e contra ct ) , to Rob ins , James, Marlie r, a nd Hein z. Neither email supports that
Mc Cabe was promoting a sale of his own services , and Cobb did not present evidence that any of
the recipients are potential customers of M cCabe ’s hou se dev e lo pment services

. 8

8 Marli er was one of Cobb ’s clients, meaning th at he w as once in the m arket for house development ser vices. However, Mc Cabe a llege d elsewhere that Marlier was one of Cobb’ s c lients who fra udulen tly obtained a mort g age. C obb did not al le g e o r present evidence that McCabe was soli ci t ing Mar lier’s busin ess.16 We conclude that C obb ha s not met hi s b urd en to s how th at the
commercial

- speech e xem ption applies , and w e overrule his sec ond issue.

M otion for Reconsiderati o n Cobb argues in his sixth issue that the tr ial court erred by refusin g t o c o ns ider the
evidenc e attached to h is mot ion to reconsider

. S e e Te x. R. Civ. P. 270 ( “ W h en it clearl y a ppe ars
to be nec e ssary to the d ue adm inistrat ion of justice, the court ma y permit addition al evidence to
be offered at an y t ime; provided that in a jury c a s e no evid en ce on a controversia l matt er sh a ll b e

rec eiv e d af t er t he verdic t o f the j u ry
. ”). T he tri al court , howeve r , scheduled a hearin g on Cob b ’s

mo t ion and admitted all the com munication s at tached to the motion into evid ence
. We reject
Cobb ’ s argum e nt that the trial court failed to consi der th is evidence

. Cobb also ar gues tha t the trial court erre d b y implicitly denying the motion for
reconsideration

. B ecause the motion did not raise any new legal issues , we need not sepa rately

a ddress the d enial of his motion for reconsideration

. See Tex. R. App. P. 4 7.1 ( “ Th e court of appeals must hand down a w rit ten opin ion that is as brief as practicable but that addresses every
issue raised and neces sary to final disposition of the a ppeal.”). We overr ule Co b b ’ s sixth issue.

P rima Faci e Case
Ha vin g concluded th at t he TCPA a pplies , we turn t o whe ther Cobb carr ie d his
bu r den to est ablis h by cle ar and specific evidence a prima facie case for eac h e sse ntial elem ent of
his cla i m s. See Tex. Civ. Prac. & R em. Co d e § 27.005 (c )

. I n this co nte xt, “ clear a nd specific eviden ce” re f ers to the qualit y of evidence require d, and “ prima facie case” refers to the amount of evidence r equired to sat isfy the

non mo van t ’ s burden. RigUp , 613 S

. W.3d at 189

. “ C lear and sp ecific ev idence mean s t ha t the17 ‘ pl ain tif f must pr ovide enough detai l t o s h ow the fac tual ba sis f or its claim. ’ ” Bedfor d v. Spassof f

, 520 S.W.3d 901, 904 (Tex. 2017) (per c uriam) (quotin g In re Lipsky , 460 S.W.3d 579, 591 (Tex. 2015) (orig. proceeding)). “ A prima facie case refers t o ‘ eviden ce su ffi c ie n t as a

matte r o f l aw to esta bl is h a given fact if it is not reb utted or contradicted. ’ ” La ndry ’ s, Inc

.

v. An i mal Legal Def. Fund , 631 S.W.3d 40, 46 (Tex. 202 1) ( quoting Lipsky , 460 S.W .3d at 5 90 )

. It is the “ minimum quantu m o f evidence neces sar y to s u pp o rt a ration al i n f e r en ce that t he
al leg ation of fact is true

. ” Id. at 54

.

Tortious Interfe re nce with an Existing Con tract
The eleme nts of a pri ma facie case fo r tort ious inte r ference with a n exis ting

con tract ar e : “ (1) an ex isting c ontra c t subj ect to int erfer en ce, (2) a w ill ful and intenti o nal act of
interf erenc e wi th the contract, (3) that pro xi mately c aused the plaint iff ’ s i n jury, a nd (4) cause d actual damages o r lo ss.” Dal las Sym ph ony Ass ’ n . v. R eyes , 57 1 S.W.3d 753, 76 1 n.38 (Tex. 2019 )

. We sta rt wi th proximate cause be cause it is disp ositive here

. “ P roximate cause
encompa sse s both foreseeability a nd cause in fact

. ” Mem orial H erma nn Health Sys. v. Go mez , 649 S.W.3 d 415 , 427 (Te x. 2022)

. “ The gene ral test for cause in fact is whether the defend a nt ’ s

act was ‘ a sub st ant i a l fac to r in c a usin g the injur y and witho ut which the inj ury would not have

o ccu rred. ’ ” Id

. (qu oting Anderson v. Durant , 550 S.W.3d 605, 618 (Tex. 2018) ). An inju r y is
fore seeable “ if a pe rson of ordin ary i ntelligence and pruden c e w o uld have reasonab ly a n ticip at ed
it u nder the circum stances

. ” Immobiliere J eun ess Establissement v. A megy Bank N a t ’ l Ass ’ n , 525 S.W .3d 875, 8 80 (Tex. App.

— Ho uston [14th Di st. ] 2017, no p et.) (cit ing Doe v. Boys Clubs of Greater Dall

. , Inc. , 907 S.W.2 d 47 2 , 4 78 (Tex. 1995) )

.18 Cobb argue s that his affidavit is e videnc e that the December 29, 2020 email

cau sed First United Bank to remov e hi m from the approved builders list and “ refuse[] to proceed
with fina ncing th e construction , ” resulting in his client s can celing their contr act s. 9 McCabe

re sp on ds that the affidavit is conclusory because it co ntains no suppo rting facts. Se e Lipsky , 460 S.W.3d at 592

– 93 ( “ Bare, baseless opinions do not cr eate fact question s, and neithe r are t he y
a sufficient subst itu te for the clear a nd specific evidence r eq uired to establish a prima facie case

un der the TCPA. O pinions must b e based on demonstrable facts and a reasoned basis. ” ( internal
citations omitted ) ). We agree with Mc Cabe. Re moving the statements st ricken by the tria l court,
Cobb ’s af fid avit does n ot cont ain “ clear and specific ” evidence that the December 29, 2020

ema il caused First United Bank to remove C obb from the approved builder ’ s list or deny funding
for his cli ents. Nor does the affidavit contain f acts s u ppor ting his asserti on th at First Un ited
Ba nk ’ s denial of funding c aused Cobb ’ s clients to cancel their con tracts. See Van Der Linden

v. Khan , 535 S.W.3d 179, 194 (Tex. App.

— Fort Worth 2017, pet. denied) (o bserving
that “ conjecture, guess, or specu lation ” reg arding causation c ann ot survive “ clear and specific ” scrutiny ).
Cobb insists t hat two of McCab e ’ s emai ls sent after th e trial court ’ s interlocut ory ruling suppl y t he missing e vidence of causation

. On June 17, 2021 , McCabe sent the following

em ail to Ryan James:

9 We assume withou t deci ding t hat both c lients br eached a bi nding p r ovisi on of their contracts by canceling

. See Fred L u pf er & Advan ced Pub. Ins. Adjuster s , LLC v . Bene ke , No. 03

- 19

- 00 8 45

- C V, 2021 WL 522 5429, at *5 (Tex. App.

— A ust i n Nov. 10, 2021, no pet.) (mem. op. ) ( “ To maintain a t o rtious

- inte rference claim, a pl aintif f must

. . . show that ‘ some obligatory provis ion of a contract h as been b reached. ’ ” (q u oting A ll Am. Tel., Inc. v. U S

LD C

omm c ’ n s, Inc

. , 291 S.W.3d 518, 532 (Te x. A pp.

— Fort Wort h 2009, pet. denied) )).19 Interestin g - Vanc e Cobb e s sentia l l y sued me for interfe ring i n 2 Hom estead
M ortgage lo a ns - one to J oe’s Mother

- and another

- and

- 6. with [Stewar d ] Millie s sig natur es - 2

- your bank Bank failed to fund

. Failed to fund for a reason.

- Dece m ber n otice to Greg M as sey . Co pied. Mo r tgage F r au d

Less than an hour later , McCab e forwar ded the sa m e e mail to Ja mes with t h e message “Not
blu ffing

- we are behind that. ” Cob b interpr ets th ese emails as an admission that McCabe ’ s December 29, 2020 e mail c a used the termination o f b oth contract s. But there are several
inde pendent decisions by third parties between Cobb sending the emails and Steward and
Pantaleo terminating their contracts , and Cobb did not present any “ clear and specific ” evidence
th at the emai ls caused those de cis ions. For e xample, Cobb did not present a ny evidence that the
Bank removed him as an approv ed builder or why they did so or why the customers terminated
their contracts with Cobb. Furt her, neither email permits an infere nc e that the denial of
financin g t o S teward an d Laura Panta leo caus ed them t o terminate their contracts with C obb.
N o r did C o bb provide additional facts permitting an in ference of a c au sal relationship

. At most,
Cobb ’s affidavit show s that the denial of f un ding a n d t he termination of the contracts o ccurred in
close tempora l prox imity to one another. 10 Without mor e, t he trial cou rt was left to speculate
about the causal relationship bet we en the two events. See Van Der Linden , 535 S.W.3d at 194 ( “ Cause in fac t . .

. ca nnot be establishe d b y mere conje ct ure, guess, or speculation

. ” )

. We conclude that Cobb failed t o carry his burd en to p ro vide clear and specific
evidence that McCabe ’ s December 29, 2021 email was a substantial factor leading to Steward
and Laur a Pant a leo terminating their co ntract s. See id. at 195 ( concluding that proof that
communication and breach “ occurred in ve ry clos e temporal proximity to one another ” was not

10 The record does not i nclude either termin ation date , but C obb stat es in the affidavit th at McC abe p u rc hased the De Ver ne property in Jan uary 2021.20 prima facie evidence of cau sation ); see also Burbage v. Burbage , 447 S.W.3d 249, 262 ( T ex. 2014) (holding t h at “ the jury cann ot reas onably infer tha t def amation caused the cancellations
wh en the [business ] cance ll ations could have occurred for any number of reasons , ” particularly
si nce appellee never asked customers about reasons for cancel a tio n ). The trial cou rt did not err
in granti ng McCabe ’s motion to dismiss this claim.

T

ortio us Inter fe rence with Pr o spectiv e Contracts
The ele ment s of torti ous in te rfer ence wit h prospective c ontr acts are : (1) “ a reasonable probability t ha t the plai ntiff w oul d have e ntered int o a business rel ati onsh i p with a third party , ” (2) “ the def e n dant either acted w it h a conscio us desire to prevent the rela tion sh ip
from occurr in g or knew th e interference was certain or substantially certain to occu r as a result of
th e co nduct , ” (3) “ the d efe ndant ’ s c ondu ct was i ndependently tortious or unlawful , ” ( 4) “ the
int erferenc e proximately c a used th e plaintiff injury , ” an d (5) “ the plain ti ff s uffered actual damage o r lo ss as a result. ” Coinmach Corp. v. Aspe n wood Apart me nt Cor p

. , 417 S.W. 3d 909,
92 3 ( Tex. 2013 )

. “ Co nduc t that is merely ‘ shar p ’ or unfair i s not actiona ble and ca nnot be the
b a sis for a n action for tort ious i nterfere nce wi th pro spective relations

. ” W al

- M art S tores, Inc.

v. Sturges , 52 S.W.3d 7 1 1, 726 (Tex. 2001)

. Co bb alleges that he ha s an “ ongoing busine ss re lat io nship ” with Heinz , Co m p ass
Bank , Robins , Tilley , P antaleo, and Mar lier an d that McCab e has taken act ions to inte rfere with
those relat i ons hip s. He cit es the emails o f De ce mber 29 and 3 0 , among othe rs, an d al lege s :

Each ti m e McCabe contact ed Hein z, Robins, T illey, Pa ntaleo, Marlie r, or others that I had worked w i th in t he r eal estate indu st ry, i t r educed the likeliho od I would obt a in any ad ditional bui lds for the m due not onl y to t h e false sta te ment s that McC abe was making a bo ut me but also their desire thems elves fro m McCabe as
mu ch as possible. With McCabe’s v i cious o bses sion with me, H ei nz an d R obins21 ha ve intimate d that they ne e d to di st ance themsel ves as much as possible from m e while McCa be con t inues his con cerning thr e at s and false st atement s ab out them , even if that meant no t referring poten tial clients to me.

Cob b fu rther states that h e :

wi tne ssed an increase d reluctance o f m a ny o f my clients and business as sociates to e nga g e me on new pr oj e c ts si n ce McC abe started his “World War” on me. It has become well

- kno wn in the Aust in real estate in dustry that McCa be is s eeki ng to destroy me a t any c ost and that t hey will likel y s t art recei vi ng this fr om McCabe i f they sign o n as a c u stomer, c li en t, o r pr ov i d er o f mine.

As an ex ample of a lost potent ial contract , Cobb a vers that he “ was contacted by a
pot ential customer, Chloe C hia ng to b uild a house for her at 1611 Cant e rb u ry, A ustin, Texas and , following McCabe’s cont in ued disp araging c omments, s he w as u n a b le t o mov e forward wi th
financ ing wi th me a s the buil der. ” Cob b concedes that this fall s short of a prima facie case if
vi e we d “in a vacuu m ” but urge s us to view it i n c ontext of the othe r e vidence . M ore specifical ly , he arg ues tha t “ the lost sale to Ch i an g f ollo ws the ex act same pat tern a s the D e Vern e a nd
Cedarvie w properties, ” and that “ th ere is so m uch other proof of wha t M cC abe did to damage
Cobb in McCabe’s own e mai l s and texts, all of w hich are in the record. ”
C obb pro vide d no details rega rding t he pote n tial co ntr act other than the f a ct tha t
she “ con tact ed ” him abou t bu ilding a house on a par ticular l ot

. E vidence of “ mere n egotiati on s ”
d oes not suffic e to show a reasonable probability th at a contract would hav e been formed

. See Camp v. Pa t terso n , No. 0 3

- 16

- 00733

- CV, 201 7 WL 3378904, at *8 (Tex. App.

— Austin Aug. 3, 2 017, no pet.) (mem. op.) ( citing Richardson

- Eagle, Inc. v. William M. M ercer, Inc

. , 213 S.W. 3d 469, 47 5 (Tex. App.

— Houston [1s t Dist. ] 2006, pet. den ie d) )

. Rather, Cobb had the
burde n to establi s h a pr ima facie case t hat McC abe “ interfered with a reasonably probable
contract that would have be en entered i nto but for the interferen ce. ” See Coinmach , 417 S .W .3d22 at 92 4

. Cobb ess entially a rgues that it is reasonable to ass ume that he wo u ld ha ve sig n ed a

c ont ract with Chiang bu t for McCabe ’ s communi c at ions , bu t “ assumptions

— even reasonable

ones

— are not eviden ce. ” Camp , 2017 WL 337890 4 , at *8

. Viewing the pleadings and evidence in the light most fav orabl e to Cobb, we cannot conclud e th at the factu al allega tio ns provide enough detail to support a rati onal inference that it is r easonably certain he would have s igned a

contract with Chi a n g but for McCabe ’ s i nterference. See id

. Cobb argues more generally that M cCabe “ unq uestionably ca used [Cobb ] to lo se
bus ine ss ” by “ send [ing ] h arassin g and thr eate nin g email s to anyone who works with C obb

. ”
E v en if it is reas onable to infer tha t a l l the recipients of Mc Cabe ’ s communications ha ve stopped doing business with C obb

— a m at ter that McC abe di s pute s

— Cobb h as not all ege d that any

contract s invol vin g them advanc ed b eyond “ mere negotiations

. ” See id

. W e conc lude t ha t Co bb
failed to esta bli sh a prima facie case that it was reasonabl y probable he would have entere d a business relationship wi th Chi a ng b ut for McCabe ’ s in ter ference. T he trial court did not err b y
g ranting McCabe ’ s motion to dismiss this claim. See id. ( r evers ing d e nia l of TCPA m oti on
bec au se the r e is “ no e vidence of a spe cific p arty with whom Patte rson had a re asonabl e probab ilit y o f en tering in t o a busi nes s relation ship abse nt Camp ’ s emails ” )

. W e overrule C o bb ’ s third issue

. We do not reach Cobb ’ s f our th issu e, whi ch
chall en ges M cCabe ’ s justification defense, because it is unnecessary in l ight of our disposition of
his thir d issue. S ee Tex . R. App. P . 4 7. 1.

Atto rn eys ’ Fees and San ctions
Cobb c h allenges t he awa rd o f $ 150,000 i n attorney ’ s fees and $ 6 0 ,000 in

sa nctio ns in hi s final is sue. See Tex. Civ. Prac. & Rem. Code § 27.009 (a)

.23 Attorney ’ s Fees
If a trial co ur t grants a mo tio n t o dismiss, t he TCPA re q uires the c o urt to aw ard
the movant its “ r eason able attorney ’ s fees i ncurred in defending against the legal act ion

. ” Id. § 27. 00 9 (a)(1)

. A “ reasonable ” attorney ’ s fee “ is one that is n ot excessive or extreme, but rather
mode rate o r fair. ” Sullivan v . A braham , 488 S.W.3d 29 4, 299 (Tex. 2016)

. W e review a trial

court ’ s award of fees for an abuse of discretion

. S ee id. ; Br oder v. Nexstar Broad. Grp

. , Inc. , 2021 WL 2273 470, at *1 5 (Tex. App.

— Au stin June 4, 2021, no pet.) (mem. op.). A trial court
abus es its discretion when i ts “rul ing is arbitra ry and unreasonable, made without regard for guiding legal principles or supporting evidence.” In re State Farm Mut. Auto. Ins. , 629 S.W.3d 866 , 872 (Tex. 2021) (orig. proceeding)

. In de t ermin ing the reasonable nes s and necessity of at torney ’ s fees in a fe e shifting situation , the factfinder first “ determine [s] the reasonable hours s pent by counsel in the case and a reasonable hourly rate for such work ” a nd “ then multiplies the numb e r of s u ch ho urs by the applica ble rate, the product of which is the base fe e or lodestar. ” Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469 , 494 (Tex. 2019 ) ( citing El Apple I, Ltd. v.
Olivas , 370 S.W.3d 757, 760 (Tex. 2012) ). Su fficient evid ence “ i nclud es, at a minimum,
evi dence of (1) part icul ar serv ices p erformed , (2) who performed those services, (3) approximately when the s ervices were pe rformed, (4) the reason able amount of time require d to

pe rform the services, and (5) the reasonable ho urly r a te fo r each person perf orm ing such

ser vices

. ” Id. at 498. The base lodestar calcu lation , when supported by sufficient evidence, is presumed to “ r eflect [ ] the reasonabl e and necessary attorney ’ s fees that can be shifted to the

non - prevailing party

. ” Id

. a t 4 99.24 In support o f h is request for fees, M c Cabe su bmitted invo ices, time entries, the resumes of his counsel, and a sworn dec laration f rom his lead counsel, Pa u l Trahan

. 11 Trahan
stated that he worked on the case w ith the assistance of an assoc iate a t his law firm,
Ash ley Kue mpel, and a legal assis tant

. Their invoic es reflect a previo usly agreed 15 % d iscount
on their normal rates of $ 795 , $ 635 , and $ 295 , respectively

. In his declaration , Tr ahan di scusses
th e tasks performed , includ ing negotiating and drafting a R ule 1 1 agre emen t where the pa rti es

a gre ed to forgo a hearing o n Cobb ’ s req uest for a tempo rary injunct ion , writin g and reviewing pleadings, motion s, and response s ; drafting evidentiary object ions and responding to C o bb ’s own objections; drafting discover y ; pre p a ring for va rious hea rin gs ; in v estigating the factual bas is of
Cobb ’s claims and possible defense s ; and researching issues relate d to the TCPA, such as
whether it applied to Cobb ’s interference claims , the proced ural steps for securing a dismissal
und er t h e TCPA , and the scope of re cov e rable fees and sanctions. Tra han t est ified that based on
more than two decades of experience in c omplex comm erc ial litigation in Travis County, these

serv ices were necessary , and the rates are reasonable for the time an d p la c e whe re the se rvices

we re per f ormed

. C o bb ’ s counsel sub mitted his o wn declaration opining t hat the hourly rates are
not reasonable and that many of the billed services are ex cessiv e. T h e trial court awarded $ 150,000 i n fees

. First, C obb argues that the tria l court abused its dis cret i on because the record
show s that Trah an ’s hourly rate is “ out of line with Travis C ounty community st and ards

. ” See
Rohrmoos Ventu re , 578 S.W.3d at 500 ( explaining lodestar calculation should include “ th e fee

11 Traha n subsequent ly submit ted two supplemental declarations au thent i c ating billing records for tasks performed after t he original declaration. C obb ’ s counsel also submitte d supplemental declarations. We refe r to all declara tions submitted by eac h couns e l as a single docu me n t.25 customarily char ged i n the locality for si mila r legal services ” )

. As evi dence, he c ites a survey published in the National Law Journal (and a ttached t o Tr a han ’s declaration ) that allegedly

“ shows for the most part that local, average, hourly rates are below what McCabe’s coun s e l charged him. ” Bu t th a t survey shows that as of January 1, 2020, partners at fir ms with over
150 lawyers in Travis County charge d be tween $ 300

- 800 an hour

. Even if the survey results conclusively establish the range of reasonable hourly rates in Travi s C o unty , it does not ref u te
Trahan ’ s testimony that his hourly rate was consistent with th at “ customarily charged in the locality for similar legal services

. ” See Abbott v. Anti

- Defamation League Austin, Sw.,
& Texoma Regions , 610 S.W.3d 911, 916 (T ex. 2 0 2 0) ( stating that th ere i s no a buse of discretion

“ if some evi dence reasonably supports the court ’ s ruli ng ” )

. Next, Cobb argue s that an award of $ 150,00 0 is “ inc ommensurate wi th the procedural posture of this case ” and a “ sho cking a ward for handlin g a s i n gle substantive

mot ion

. ” M o re specificall y, Cobb ar gues that there is no e vidence that certain ser vice s

were reasonable :

• 5 9.5 hours bille d in April of 2021 for “ TCPA research and drafting activities ” ;

• 70 hours f or drafting and revi sing McCabe ’s mo tion t o dismiss and sup por ting de c larations, which co llectiv ely comp rise thirty pages ;

• 39.9 hours over three days in preparation for hearing on his motion to dismiss , which was held in half a day ; and

• 40 hours on McCab e ’s motion for co sts, fees, and sanc tio n s
.

W e disagree. Tr a ha n explain e d in the declaration that McCabe ’s leg al team was required to “ dedicate a significant amount of time ” to the case because the TCPA had recently
been amende d , which required M cCabe ’s legal team to “ to interpret and apply t he s tatute ’ s26 revised p rov isions t o this case with little guid ance f rom th e courts or past precedent

. ” T he
invoices admittedly reflect that McCabe ’s legal team spent s ignificant time researching various facets of the TCPA and drafting pleadings, but the t r ia l court reduced McCa be ’ s fee req u est by $ 30,000

. See Br ode r , 202 1 WL 2273 470 , at *1 5 ( upholding fee award even though invoic es

“ reflect that the associate spent considerable hours drafting certain pleadings that were then reviewed and reworked by the m o re s enior attorneys, ” in part beca u se t rial court “ struck

sev enteen hours of th e associate ’ s billed time ” )

. Moreover, the fee award was not only for

“ handling a single substantive motion

. ” As laid out in Trahan ’ s declaration, McCabe ’ s counsel
als o bille d f o r negotiat ing a nd d raf ting a Ru l e 11 agreement, investigat ing th e factual basis of
C o bb ’s claims, preparing third part y subpoena s, writing and reviewing pleadings , drafting a
motion for expedited discovery, drafting evidentiary objections , and respo ndi ng t o Cobb ’s object ions

. While C o b b ’ s counsel opine s in his d eclara tion that the rat es are “ unreasonably high ” and the services were neither reasonable nor necessary , the t rial court was within its
discretion to credit McCabe ’ s evidence over Cobb ’ s. 12 S ee Un i f

und CCR Partners v . V illa , 299 S.W.3d 92, 97 (Tex. 2009) ( “ T he trial court does not abuse its discretion if it bases its

12 C obb also objects that “out of $158, 568.45 billed by Defendant’s counsel up to June 19, 2021, $91,548.00 consists of 169.6 hours billed at an effective hourly rate of $540 by an indivi dual not license d to practice law in T exas.” This r efers to As hl e y Kuemp el, the law firm associate who work ed on t he case under Trahan’s supervision. Trahan states in his declaration that Kuempel was not admitted to the Texas Bar at the time she performe d these services

— but was admitted in N ew York

— and ex plains why he r rate i s reasonable given her qualificatio ns. C o bb’s counsel asserts in his first supplemental dec laration that Kuempel’s hourly rate would be excessive for someone of comparable experience licensed in Tex as. To the exten t Cob b makes the sa me argument h e re, we reject it because the trial court c ould h a ve credited Trahan’s explanation regarding why her credential s justified h er hourly rate

. See Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009) ( stat i ng trial court do es not a buse i ts discreti on by basi ng ruling on con flicting evidence a nd som e evidence supports ruling). But if Cobb means that Kuempel’s work should be reimbursed at a rate lower than a n attorney licensed in Texas wi th similar exper ienc e , he has not expl ained w h y her licensure s ta t us lowe rs the value of her services.27 decision on conflicting evidence and some evide nce supports its decision. ” ) ; Serafine v. Crump , 665 S.W.3d 93, 107 (Tex. App.

— Austin 20 23, pet. filed) (same )

. Co nsi d ering the entire record

an d appl ying the factors set out in Rohrmoos Venture , 578 S.W.3d at 494 , we cannot conclude
th at the t rial cour t abused its discret ion in its aw a rd of attorney ’ s fe es t o McCabe

. See Br oder , 2021 WL 22 73 470 , at *15

– 18

.

San ctions
We next consider the award of $ 60 ,000 in sanctions

. The TCPA provides that the
trial court “ may award to the moving party sanctions against the party who brought the l e g al
action as the co urt determines sufficient to deter th e party who brought t he legal ac t ion from bringing similar acti ons described in this chapter. ” Tex. Civ. Prac. & Rem. Code § 27.009 (a )(2).
We review an award of sanctions fo r an a bu se of discret ion

. Landry ’ s , 631 S.W .3d at 46

. The
TCPA affords the t ria l court “ broad discre tion to det e rmine the amount that is s uffi cient to achieve the statutory goal of deterrence

. ” 1st & Trinity Super Majority, LLC v. Milligan , 657 S.W.3d 349, 380 (Tex. App.

— El Paso 2022, no pet.)

. Factors relevant in consider ing
wheth er t o impose sanct ion s include , a mong others , the amount of att orney ’s fees and costs
incurred , the plaintiff ’s history of bringing similar actions , LMP Austin English Aire, LLC
thr o ug h Lafayette English Partner, LLC v. Lafay ette English Apartment s, LP , 65 4 S.W.3d 265,
292

– 93 (Tex. App.

— A ustin 2022, no pet.) , and “ any aggravating misconduct , ” ADB Interest,
LLC v. Wallace , 606 S.W.3d 413, 443 (Tex. App.

— Houst on [1st Dist.] 2020, pet. de nied)

. 13

13 T h e TCPA p reviously “required a trial court to award ‘ some amount of sanctions ’ even if ‘only a nominal amount .’” 1st & Trinity Super Majori ty, LLC v. Milligan , 657 S. W.3d 349, 378 (Tex. Ap p.

— El P a so 202 2, no pet. ) ( quoting Rich v. Range Res. Corp. , 535 S.W. 3d 610, 613 (Tex. App.

— Fort Worth 2017, pet. denied)). The legislature recently amended the TCPA to make an award of sanctions discretionary. I d

. a t 379 & n.11. W e ap p ly28 C o b b argues t hat there is no e vidence that sanctioning him any amount is

necessary to deter him f rom bringin g a similar leg al action in the future

. M cCabe responds that
Cobb ’ s suit was an effort “ to silence and retalia te ag ainst ” McCabe that co nstitutes aggravat ing
mi sconduct. M cCabe argues that s uch aggravat ing con duct would justify a much more

su bs t antial award , one equal to the “ ill

- gotten profits related to the four properties central to Cobb’s illegal homestead mortga ge fraud scheme

. ” Th e t rial court therefore di d not abuse its discretion by awarding the substa ntially lower sum of $ 60,00 0

. Alt ho u gh we do not agree that C o bb ’ s act ions constitute aggravat ing misconduct,
the trial court did not abuse its discretio n
. T he trial court could ha ve considered the history of
the lit i gation , incl uding that Cobb file d tw o unsuccessful motion s to hold McCa be in contempt
for violating a tempora ry restraining order and an agreed temporary injunction and that Cobb
filed an unsuccessful motion to reconsider the grant of the McCabe ’ s motio n
. See Borgelt

v. Austin Firefighters Ass ’ n, IAFF Local 975 , No. 03

- 21

- 00 22 7

- CV, 2022 WL 17096786, at *19 (Tex. App.

— A ustin Nov. 22, 2022, pet. filed) (mem. op.) (approving o f trial court ’ s
consideration of non movant ’ s “ uns uccessful delayed request for reco n sideration of the TCPA
order and the ir threat to file a T CPA motion in re s ponse to the Association' s motion for TCPA

at torneys’ fees and sanctions ” ) ; LMP Austin English Aire , 654 S.W.3d at 293 ( c oncluding that
trial court could consider that nonmov ant fil e d an unsuccessful motion for sanctio ns ) . F i nally,
the $ 6 0,000 sa n ction s a ward is less than half th e award of attorney ’ s fees and substantially less
than the $ 400,000 McCabe requested. See Borgelt , 2022 WL 17096786, at * 19 ( uph old ing

the same facto rs cour t s use to review th e amount of sanctions to revie wing the deci sion to impose sanctions

. See id. at 380 ( “ In determining the amount of a sanction under the TCPA, a trial court should consider the parties’ litiga tio n history, ju st a s it should in det erminin g wheth er a sanct io n is warr anted in the first place

. ” ).29 sanctions aw ard that was “ s ubstantially less than the $23 0,000 requested by th e Association an d is also substantially le s s than the award of $115,250 in attorneys’ fees ” ) ; LMP Austin English
Aire , 654 S.W.3d at 293 ( upholding award of $50,203 in sanctions , an amou n t “ less tha n but nearly equal to the award of TC PA attorney ’ s fees ” )

. Given the br oa d discretion provided by t h e
TCPA , we ca nnot conclude that the trial c ourt abused its discretion by awarding $ 60,000 in
sanctions

. Se e State Farm Mut. Auto. Ins. , 629 S.W.3d at 872

. Having concluded the trial court di d not abuse its dis cr etion in th e aw ar d of
attorney ’ s fees or s an ctions, we over rule Cobb ’ s fifth issue.

CONCLUSION
We affirm the trial court ’ s judgment

.

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__ _____ __ ________ _ Rosa Lopez The ofanis , Ju st ice
Befor e Justices Ba ker, T rian a and Theofa n is
A f firmed
Fi led : June 15, 2023