Affirmed as Modified; Majority and Concurring and Dissenting Opinions filed 

October 18, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00207-CV

LANDRY’S, INC. AND HOUSTON AQUARIUM, INC., Appellants 

V.

ANIMAL LEGAL DEFENSE FUND, CARNEY ANNE NASSER, AND 

CHERYL CONLEY, Appellees 

On Appeal from the 334th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-79698 

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N 

I concur in the court’s judgment except for the sanctions issue. After careful 

review of the briefs and the record, I agree with the majority that the sanction 

imposed by the trial court is excessive. However, I disagree that this record supports 

any sanction above a nominal amount. I would reverse the portion of the trial court’s 

order awarding sanctions against Landry’s and render judgment against Landry’s for 
2

sanctions in a nominal sum. Because the majority suggests remittitur to an amount 

I believe is unsupported by evidence, I respectfully dissent in part. 

The sanction’s statutory basis is Civil Practice and Remedies Code section 

27.009. It states, in relevant part: 

(a) If the court orders dismissal of a legal action under this chapter, 

the court shall award to the moving party: 

(1) court costs, reasonable attorney’s fees, and other expenses 

incurred in defending against the legal action as justice and equity 

may require; and 

(2) sanctions against the party who brought the legal action as 

the court determines sufficient to deter the party who brought the 

legal action from bringing similar actions described in this chapter. 

Tex. Civ. Prac. & Rem. Code § 27.009(a). Based on section 27.009(a)(2), the trial 

court imposed $450,000 in sanctions against Landry’s, finding that such an amount 

was necessary to “deter Plaintiffs from filing similar actions in the future.”1 No other 

finding was made or requested. As the present sanction is grounded solely on section 

27.009(a), our review of the award is governed by its language. See Kinney v. BCG 

Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *11 (Tex. 

App.—Austin Apr. 11, 2014, pet. denied) (mem. op.) (TCPA sanction order 

reviewed under language of section 27.009). 

The parties agree that an abuse of discretion standard applies to a sanction 

award under section 27.009. See id. A trial court abuses its discretion if its ruling 

is arbitrary, unreasonable, or without reference to any guiding rules or principles. 

See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 

835, 838-39 (Tex. 2004). The Supreme Court of Texas has not identified specific 

 

1

 Like the majority, I refer to appellants collectively as “Landry’s.” The court ordered 

$250,000 payable to ALDF and $200,000 payable to Conley. 
3

factors guiding trial courts in deciding the just amount of TCPA sanctions, but the 

parties appear to at least agree—by their joint citations to Kinney—that the two-part 

inquiry outlined in TransAmerican applies. See Kinney, 2014 WL 1432012, at *11 

(citing Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per 

curiam)); see also Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014) 

(discussing TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991)). 

Under that two-part test—which I too assume applies—appellate courts must ensure 

that: (1) a direct nexus exists between the improper conduct, the offender, and the 

sanction imposed;2 and (2) less severe sanctions would not have been sufficient to 

satisfy its legitimate purposes. See Am. Flood Research, 192 S.W.3d at 583 (citing 

TransAmerican, 811 S.W.2d at 917). Designed to safeguard due process rights, this 

two-part inquiry ensures that a sanction is neither unjust nor excessive. See Nath, 

446 S.W.3d at 363. 

Trial courts have substantial discretion in fixing a monetary sanction within 

the due process constraints articulated in TransAmerican. The first prong of the test 

ensures that a just sanction is directed against the offending conduct and visited upon 

the true offender. See id. Fairly answering this question requires trial courts to 

attempt to determine whether the offensive conduct is attributable to the party only, 

to counsel only, or to both. See id. 

Under TransAmerican’s second prong, courts consider the proportionality of 

the sanction relative to the misconduct. See id. The sanction’s amount must both 

further the sanction’s legitimate purpose and not exceed a sum necessary to satisfy 

that purpose. See id.; Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 881 

(Tex. App.—Dallas 2014, no pet.) (stating that it was trial judge’s prerogative to 

 

2 Nath, 446 S.W.3d at 363 (citing TransAmerican, 811 S.W.2d at 363); Am. Flood 

Research, 192 S.W.3d at 583.
4

weigh the evidence “in determining, as a matter of discretion, how large the sanction 

needed to be to accomplish its statutory purpose”), disapproved of on other grounds 

by Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017). A sanction should be a 

function of the facts presented and the purpose of the provision a court is enforcing. 

See TransAmerican, 811 S.W.2d at 920 (Gonzalez, J., concurring). 

Sanctions can have many purposes, including securing compliance with a 

statute, rule, or order, punishing past improper conduct, or deterring future conduct. 

See Nath, 446 S.W.3d at 363; TransAmerican, 811 S.W.2d at 921 (Gonzalez, J., 

concurring) (“Sanctions can be compensatory, punitive or deterrent in nature.”) 

(citing G. Joseph, SANCTIONS: THE FEDERAL LAW OF LITIGATION ABUSE § 16 

(1989)). “The word ‘sanction’ has been judicially defined as ‘means of 

enforcement’”3 or as “‘a restrictive measure used to . . . prevent some future 

activity.’” Resolution Trust Corp. v. Tarrant Cty. Appraisal Dist., 926 S.W.2d 797, 

804 (Tex. App.—Fort Worth 1996, no writ) (quoting WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 2008-09 (1981)). 

The stated purpose of section 27.009(a) sanctions is to “deter the party who 

brought the legal action from bringing similar actions described in this chapter.” 

Tex. Civ. Prac. & Rem. Code § 27.009(a)(2). As appellees acknowledge, deterrence 

from “pulling the trigger so quickly on future SLAPPs” is the “overriding question,” 

and the majority agrees that TCPA sanctions are not intended to punish a plaintiff 

whose claims are dismissed. At least one other court of appeals has recognized the 

goal of TCPA sanctions as deterrence, not punishment. McGibney v. Rauhauser, 

549 S.W.3d 816, 836 (Tex. App.—Fort Worth 2018, pet. denied). 

 

3 Coutlakis v. State, 160 Tex. Crim. 249, 257, 268 S.W.2d 192, 198 (1954) (op. on reh’g)

(Morrison, J., dissenting).
5

In analyzing a sanction, appellate courts do not rely only on the trial court’s 

findings but must review the entire record independently to determine if the trial 

court abused its discretion. Am. Flood Research, 192 S.W.3d at 583. I think it 

abundantly clear that sanctions, no matter their purpose, must be supported with 

evidence of substantive and probative character. See, e.g., CHRISTUS Health Gulf 

Coast v. Carswell, 505 S.W.3d 528, 539-41 (Tex. 2016); Nath, 446 S.W.3d at 361; 

Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). Evidentiary support 

for sanctions is important because “[f]ew areas of trial court discretion implicate a 

party’s due process rights more directly than sanctions.” See Nath, 446 S.W.3d at 

358. Sanctions are a “heavy hammer” to be wielded with “reticence.” Id. at 363. 

Absent supportive evidence, a sanction is arbitrary and thus an abuse of discretion. 

Cf. In re Garza, 544 S.W.3d 836, 842 (Tex. 2018) (orig. proceeding). Indeed, 

without evidence to review, an appellate court cannot rationally determine whether 

a sanction complies with due process. See TransAmerican, 811 S.W.2d at 917. 

Landry’s challenges the sanction amount, which it contends is excessive, as 

well as the evidence supporting the trial court’s finding that $450,000 is necessary 

to deter Landry’s from filing similar claims in the future.4 A sanction under section 

27.009(a) must be no more severe than necessary to satisfy the stated goal of 

deterrence. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(2); Nath, 446 S.W.3d at 

363. According to Landry’s, no evidence shows that it needs to be deterred from 

filing similar claims. A review of the record reveals no evidence that Landry’s has

filed lawsuits similar to this one. Appellees presented no evidence that similar 

lawsuits are percolating and likely forthcoming in the future, such as evidence that 

 

4

 The legislature has deemed sanctions mandatory upon dismissal of a claim under chapter 

27. See Tex. Civ. Prac. & Rem. Code § 27.009(a); Rich v. Range Res. Corp., 535 S.W.3d 610, 

612-14 (Tex. App.—Fort Worth 2017, pet. denied); Cox Media Grp., LLC v. Joselevitz, 524 SW.3d 

850, 864 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
6

Landry’s has threatened future defamation lawsuits or that other instances of alleged 

defamatory statements against Landry’s have occurred. Appellees also offered no 

evidence demonstrating that the amount of attorney’s fees awarded (including 

conditional appellate fees) is insufficient in itself to deter Landry’s from filing 

similar actions in the future. In my view, when, as here, a TCPA plaintiff has not 

asserted similar claims before, and is not shown likely to do so again, substantial 

sanctions based solely on section 27.009(a)(2) should be rarely appropriate. 

Appellees contend the sanction is supported by (1) Landry’s annual 

profitability, (2) Landry’s “shotgun” allegations, and (3) the amount of attorney’s 

fees incurred in defending those allegations. To me, these arguments are not 

persuasive on the present record. 

The majority regards the present sanction as similar to one rendered under 

Texas Civil Practice and Remedies Code chapter 10. See Tex. Civ. Prac. & Rem. 

Code §§ 10.001, 10.004. Additionally, the majority applies the Low factors, which 

Landry’s cited in the trial court. Low, 221 S.W.3d at 620 n.5. However, I see 

incongruence between chapters 10 and 27 because chapter 10 explicitly 

contemplates a punitive component to sanctions under that chapter,5 whereas section 

27.009 does not. See McGibney, 549 S.W.3d at 836. Indeed, chapter 10 sanctions 

were at issue in Low, and the supreme court later characterized the Low factors as 

helpful in “determining a penalty for sanctionable behavior.” See Nath, 446 S.W.3d 

at 372 (emphasis added). Assuming the Low factors apply, appellees have not shown 

that they support the sanction. In reaching this conclusion, I constrain my analysis 

to those factors appellees asserted in the trial court and addressed in our court. 

 

5 Tex. Civ. Prac. & Rem. Code § 10.004(c). 
7

A. Landry’s alleged profitability 

Appellees contend the sanction should be affirmed because Landry’s is 

purportedly “profitable.” Assuming “annual profitability” is a relevant factor in 

assessing the amount of TCPA sanctions, appellees presented no evidence of 

Landry’s current annual profit. In the trial court, appellees argued Landry’s was a 

“multi-billion dollar corporation” owned by a billionaire, Tilman Fertitta. They 

attached multiple media publications discussing either Landry’s alleged revenues or 

Fertitta’s putative worth. Assuming the media publications regarding Landry’s are 

admissible evidence, they purport to show nothing more than alleged gross revenue, 

not current profitability.6

 Additionally, Fertitta’s alleged personal wealth is not 

probative because he is not a party, among other reasons. 

According to the majority, the trial court could have inferred that “Landry’s 

can afford to pay the sanctions imposed.” But the pleading allegations cited do not 

demonstrate profitability, and surmise or speculation will not suffice to withstand a 

due process challenge to sanctions, even assuming analogy to chapter 10 sanctions 

is appropriate and the Low factors apply. See Unifund, 299 S.W.3d at 97. Moreover, 

the question is whether the amount is no more severe than necessary to satisfy the 

sanction’s purpose, not whether a party can “afford” to pay it. 

 

6 Gross revenue and net profit are not the same thing. “A net profit is the difference 

between the total receipts of a business and all the expenses incurred in carrying on the business.” 

Murphy v. Budget Rent-A-Car Sys., Inc., No. 14-95-00099-CV, 1996 WL 275072, at *2 (Tex.

App.—Houston [14th Dist.] May 23, 1996, no writ) (mem. op., not designated for publication); 

see also Texaco, Inc. v. Phan, 137 S.W.3d 763, 771 (Tex. App.—Houston [1st Dist.] 2004, no 

pet.).
8

B. Landry’s “shotgun” allegations 

Appellees also argue that the present lawsuit alone constitutes enough 

evidence of a need to deter because of the petition’s “shotgun” character.7

 But, 

generally, asserting multiple claims is not sanctionable. Asserting frivolous or 

harassing claims may be, but appellees did not argue in the trial court that sanctions 

should be awarded because Landry’s claims were frivolous, factually groundless, or 

brought in bad faith. They did not cite Civil Practice and Remedies Code chapters 

9 or 10, or Texas Rule of Civil Procedure 13. They did not invoke any basis for 

sanctions other than chapter 27. ALDF and Nasser asserted that the trial court could 

consider “aggravating misconduct” in assessing a sanction amount; however, they 

did not argue or cite evidence that Landry’s engaged in any aggravating misconduct. 

Instead, they argued, superficially, that Landry’s should either be sanctioned a “large 

fine” because it is a “multi-billion dollar corporation,” or “relinquish” the tigers in 

lieu of a fine. 

Appellees’ failure to sufficiently develop this argument in the trial court as a 

basis for section 27.009 sanctions alone supports reversal. For example, appellees 

did not claim that Landry’s filed this suit in bad faith. Therefore, to the extent a 

party’s good or bad faith in filing an action is a factor in determining the just amount 

of section 27.009(a)(2) sanctions, Landry’s is presumed to have filed this action in 

good faith and it was appellees’ burden to allege and prove otherwise,

8 which they 

 

7

 Landry’s asserted causes of action for defamation, business disparagement, tortious 

interference with prospective business relations, abuse of process, and declaratory judgment. 

Landry’s also alleged civil conspiracy. The trial court must consider the pleadings in determining 

whether a legal action should be dismissed. Tex. Civ. Prac. & Rem. Code § 27.006. 

8 Nath, 446 S.W.3d at 361; GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730-31

(Tex. 1993); State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d 654, 670 (Tex. App.—

Houston [14th Dist .] 2005) (en banc), aff’d, 251 S.W.3d 472 (Tex. 2008). 
9

did not argue below and do not argue substantively in this court.

9

 I agree with the 

majority that evidence of bad faith is lacking, but that observation warrants a more 

consequential one: the good faith presumption applies.

Given that Landry’s is presumed to have filed its claims in good faith, I 

respectfully disagree with the majority’s view that the decision when to file its claims 

constitutes evidence of a “willful[] . . . offense” under element (b) of the Low factors. 

See Low, 221 S.W.3d at 620 n.5.10 The first reason I disagree is because appellees 

have never advanced the argument. The second reason is because there exists no 

evidence of an “offense” that can be characterized as willful. The majority states 

that the trial judge could have inferred that Landry’s filed its claims in state court 

fifty-nine days after appellees served their sixty-day notice letter as evidence of 

willfulness to “pre-empt the federal claims.” Landry’s may have purposely asserted 

claims in state court to avoid a federal forum, but doing so is not an “offense” when 

the claims themselves are presumptively motivated by good faith. The decision 

when or where to file suit is not sanctionable under these circumstances, so the 

degree of willfulness in that decision does not, in my view, support a sanction under 

Low factor element (b). 

Even if we consider the decision to “pre-empt” a potential federal suit as a 

“willful offense,” I am reluctant to justify the sanction on that ground when no 

evidentiary hearing has occurred to examine whether the decision is properly 

attributed to the client. Establishing “willfulness” under Low, would entail, I 

believe, raising the argument in the trial court, presenting evidence on the degree of 

willfulness of an identifiable offense, and possibly requesting additional findings 

 

9

Instead of arguing that Landry’s engaged in bad faith, ALDF acknowledges in this court 

that bad faith is “not the touchstone.” 

10 Element (b) allows courts to consider the “degree of willfulness . . . involved in the 

offense.” Low, 221 S.W.3d at 620 n.5. 
10

under section 27.007.11 Appellees did none of these things, which would have 

assisted the trial court in performing its duty to attempt to determine whether the 

offensive conduct (here, the timing of Landry’s claims) is attributable to a party only, 

to counsel only, or to both. See Nath, 446 S.W.3d at 363. This is an uneasy and 

opaque inquiry to be sure, see id., but our record reveals no effort by appellees or 

the trial court to undertake this required determination.12

 

Even chapter 10 sanctions, which the majority invokes by analogy, must be 

supported by evidence adduced at a hearing that supports a trial court’s finding 

“about the party’s or the attorney’s motives and credibility.” Gomer v. Davis, 419 

S.W.3d 470, 480 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Bad faith—and 

by extension, “willfulness” under Low—does not exist when a party merely 

exercises bad judgment or is negligent; rather, “it is the conscious doing of a wrong 

for dishonest, discriminatory, or malicious purposes.” Mattly v. Spiegel, Inc., 19 

S.W.3d 890, 896 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Without hearing 

evidence on circumstances surrounding the filing of the pleading and the signer’s 

credibility and motives, the trial court has no evidence to determine that a pleading 

was filed for an improper purpose. See Parker v. Walton, 233 S.W.3d 535, 539 (Tex. 

 

11 Under section 27.007, 

(a) [a]t the request of a party making a motion under Section 27.003, the court shall issue 

findings regarding whether the legal action was brought to deter or prevent the moving 

party from exercising constitutional rights and is brought for an improper purpose, 

including to harass or to cause unnecessary delay or to increase the cost of litigation. 

Tex. Civ. Prac. & Rem. Code § 27.007(a). 

12 Because appellees’ motions did not assert a willful offense or invoke section 27.007, 

upholding the sanction on that ground potentially raises additional due process questions regarding 

lack of fair notice. See, e.g., Nolte v. Flournoy, 348 S.W.3d 262, 271 (Tex. App.—Texarkana 

2011, pet. denied).
11

App.—Houston [14th Dist.] 2007, no pet.) (citing Karlock v. Schattman, 894 S.W.2d 

517, 523 (Tex. App.—Fort Worth 1995, no writ)). 

Here, we lack assurance that the sanction has been “visited upon the true 

offender” because the trial court conducted no evidentiary hearing and appellees 

presented no evidence on the issues. See Nath, 446 S.W.3d at 363; TransAmerican, 

811 S.W.2d at 917. Our record contains no proof as to who made the decision to 

file Landry’s lawsuit when and where it did, or why. Evidence of motives and 

credibility cannot be supported by conclusory opinions, perfunctory statements,13 or 

mere argument of counsel.14

 Absent an evidentiary hearing, any inference the trial 

court could have made as to the timing of Landry’s suit amounts to nothing more 

than surmise or suspicion and does not overcome the good faith presumption. See 

Parker, 233 S.W.3d at 541 (rejecting timing of lis pendens filing as sufficient to 

overcome presumption of good faith absent evidentiary hearing). 

What remains, in my view, is the assertion that some of Landry’s claims 

lacked legal or factual support when the suit was filed. On the other hand, the 

majority presumes without deciding that Landry’s presented clear and specific 

evidence to support the defamation claims, which are the crux of the suit. I would 

say further that the defamation claims grounded on appellees’ charges that Landry’s 

violated the Endangered Species Act were defamatory per se and not frivolous. 

Also, the majority notes a split in legal authority as to whether the alleged 

defamatory statements are subject to the judicial proceedings privilege, an 

affirmative defense. Thus, though we have today held that the privilege applies as a 

matter of law, Landry’s legal position on the defense’s inapplicability was not 

 

13 Brozynski v. Kerney, No. 10-05-300-CV, 2006 WL 2160841, at *5 (Tex. App.—Waco

Aug. 2, 2006, pet. denied) (mem. op.). 

14 See Delgado v. Kitzman, 793 S.W.2d 332, 333 (Tex. App.—Houston [1st Dist.] 1990, 

no writ). 
12

unfounded. Even assuming Landry’s position on potentially applicable privileges 

had no basis in law, a court may not sanction a represented party for unfounded legal 

contentions. Nath, 446 S.W.3d at 362. In any event, this court should not engage in 

a claim-by-claim parsing of the petition’s “degree of . . . frivolousness”15 when, as 

mentioned, appellees did not see fit to do so in the trial court in support of their 

sanction request and thus did not fairly put these questions before the trial judge. 

Ultimately, in my view, affirming this sanction on a frivolous pleading ground 

contravenes the statutory purpose because sanctioning a party for groundless claims 

is punitive and 27.009 sanctions “are not aimed to punish but rather only to deter.” 

McGibney, 549 S.W.3d at 836. Additionally, groundless pleadings alone cannot 

serve as a foundation for this sanction when evidence of the true offender is lacking, 

and the sanction thus fails the first TransAmerican prong. 

C. Appellees’ attorney’s fees and expenses 

Last, citing Kinney, appellees argue that the sanction does not violate due 

process because it is proportional to the attorney’s fees and expenses incurred in 

defending this action, which are a “guidepost” for TCPA sanctions. See Kinney, 

2014 WL 1432012, at *12 (concluding sufficient evidence existed of economic 

impact of litigation in two states to serve as “guidepost” for sanction amount). Here, 

the total trial court attorney’s fees and expenses awarded were $174,480.26; the 

$450,000 sanction was over 2.5 times the fees and expenses. The majority suggests 

remittitur of the sanction to an amount equal to the fees and expenses. 

In Kinney, Kinney’s former employer, BCG Attorney Search, Inc., sued 

Kinney in California for various torts, including defamation, arising out of a single 

internet post Kinney made after leaving BCG’s employ. Id. at *1. The California 

 

15 Low, 221 S.W.3d at 620, n.5.
13

court dismissed the suit under California’s anti-SLAPP statute and awarded Kinney 

$45,000 in attorney’s fees. Id. at *2. BCG later initiated two additional proceedings: 

an arbitration and a lawsuit in Texas. Id. at *2 & n.3. The Texas action asserted 

contractual claims arising from Kinney’s alleged employment contract, as well as a 

Lanham Act claim arising out of the same internet post at issue in the California suit. 

Id. In the Texas action, Kinney asserted a TCPA motion to dismiss, which the trial 

court granted. The trial court assessed a $75,000 sanction against BCG, finding that 

BCG brought the Texas action to harass Kinney and that the amount of the sanction 

was necessary to deter BCG from filing similar suits. Id. at *3. The court of appeals 

affirmed the dismissal on the grounds that Kinney proved his affirmative defense of 

res judicata, and the court also affirmed the sanction. Id. at *10-12. 

Appellees correctly note Kinney’s reliance on evidence of attorney’s fees 

incurred over the course of litigation, but the trial court (and court of appeals) in 

Kinney considered that evidence in conjunction with other evidence bearing directly 

on the need for deterrence. Id. There, the record showed “a culmination of multiple 

actions, including an attempted arbitration, concerning claims for the same harm 

asserted under various legal theories and that one of the prior actions resulted in an 

award of attorney’s fees against BCG in the amount of $45,000,” id. at *12; and the 

trial court found that BCG brought the Texas action for the “improper purpose of 

harassing Kinney.” Id. at *3. The attorney’s fees the Kinney court referenced 

included not only the fees incurred for the action that was dismissed in Texas, but 

also the fees incurred as a result of the preceding California action. Id. at *2. As the 

court of appeals held, the trial court could have reasonably concluded that a lesser 

sanction would have been insufficient to deter future actions. Id. at *12. 

The circumstances in American Heritage Capital, another case upon which 

appellees rely, are similarly distinguishable. American Heritage Capital affirmed a 
14

$15,000 TCPA sanction. Am. Heritage Capital, 436 S.W.3d at 881. Again, unlike 

the present situation, the movant in that case presented evidence of recent net profits 

and an email communication by the plaintiff reasonably construed as threatening 

additional litigation. Id. 

The present evidence is simply not comparable to the situations in Kinney and 

American Heritage Capital. There exists no evidence of other prior or threatened 

litigation by Landry’s to which the TCPA applied or might apply; there exists no 

finding (or evidence) of bad faith or an improper purpose in bringing the present 

action; and, though the majority concludes some claims were frivolous, we lack 

evidence that the sanction has been visited upon the offender. The gravamen of 

appellees’ request in the trial court was to sanction Landry’s because it is a “multibillion dollar corporation,” and even that contention was unsupported by proof. The 

record in this case is more analogous to those instances when a nominal sanction, or 

no sanction, was awarded due to the lack of deterrence evidence. See McGibney, 

549 S.W.3d at 836 (vacating $150,000 sanction as excessive and impermissibly 

punitive; “meager” evidence of deterrence); cf. Rich, 535 S.W.3d at 612-14 (trial 

court awarded no sanctions; court affirmed on grounds of no evidence of need for 

deterrence; though sanctions mandatory, record supported only nominal amount and 

court’s failure to assess nominal sanctions was harmless error); Tatum v. Hersh, No. 

05-14-01318-CV, 2018 WL 1477597, at *5-6 (Tex. App.—Dallas Mar. 27, 2018, no 

pet.) (same). 

In my view, the evidence before the trial court is not sufficiently probative of 

the deterrence interest articulated in the statute, and it cannot support a finding that 

the sanction amount awarded by the trial court, or the reduced amount suggested by 

the majority, is necessary to deter Landry’s from filing similar actions in the future. 

The record reveals no proof that the sanction advances section 27.009(a)(2)’s 
15

deterrence interest or, assuming it does, that a sanction in the amount imposed (or 

suggested as a remittitur) is of the minimum severity “to deter [Landry’s] from filing 

similar actions in the future.” 

Though appellees did not advance a groundless pleading argument in the trial 

court, and the trial court made no such finding, sanctions for groundless pleadings 

have been moderate, see Nath, 446 S.W.3d at 364 (collecting cases), and even the 

remittitur amount the majority suggests is well above the median discussed in Nath. 

We should be especially cautious in upholding a much more substantial sanction, 

such as the one at issue, when a (partially) deficient pleading is not coupled with any 

proof bearing on the TCPA’s explicit deterrence goal because the court cannot 

determine whether the sanction is “sufficient to deter the party who brought the legal 

action from bringing similar actions described in this chapter.” Tex. Civ. Prac. & 

Rem. Code § 27.009(a)(2). 

In sum, the sanction fails both TransAmerican prongs. It fails the first prong 

for the reasons stated in section B. It fails the second prong for the reasons stated in 

sections A and C. 

I am not persuaded that the evidence presented here is sufficient to support 

more than a nominal sanction. See McGibney, 549 S.W.3d at 836; Rich, 535 S.W.3d 

at 612-14; Tatum, 2018 WL 1477597, at *5-6. Therefore, I would reverse the portion 

of the trial court’s order awarding sanctions against Landry’s and render judgment 

against Landry’s for sanctions in a nominal sum.16

 

 

16 A remand is unnecessary. See CHRISTUS Health Gulf Coast, 505 S.W.3d at 540-41. 
16

For these reasons, I respectfully dissent in part from the court’s opinion and 

judgment. 

 

 /s/ Kevin Jewell

 Justice 

Panel consists of Justices Christopher, Donovan, and Jewell (Christopher, J., 

majority).