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

NO. 03
- 19
- 00683
- CV

Grand Parkline, LLC; H Mart Companies Incorporated; H Mart Austin LLC; and IYK Texas Corporation, Appellant s

v. Mama Fu’s Lakeline, LLC, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 006056, THE HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING

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

This is an interlocutory appeal from the trial court ’ s denial of a TCPA motion to
dismiss

. See Tex. Civ. Prac. & Rem. Code § § 2 7 .003 , 1 51. 0 1 4 (a)(12)

. Appellee Mama Fu ’ s Lakeline, LLC , sued several parties

— including appella nts Grand Parkline, LLC; H Mart Companies Incorporated; H Mart Austin LLC; and IYK Texas Corporation

— complaining of
actions related to a commercial

- real

- propert y lease. F o r the following reasons, we will re verse the portion of the trial court ’ s order awarding M ama Fu ’ s its attorney ’ s fees and costs but
other wise affirm the t rial court ’ s order

.

1 The l egislature amended the TCPA in 2019 , but those changes do not apply here because th is action was filed before the effectiv e date of t he amendmen ts

. See Act of May 17, 2019, 8 6th Le g ., R.S., ch. 378, §§ 11

– 12 , 2019 Tex. Sess. Law S erv. 6 84, 68 7 ( specifying that TCPA amendments apply only to action filed on or after September 1, 2019 )

. All citations to the TCPA in this opinio n are to t h e version t hat appl ies to this dis pute

.2 BACKGROUND
As a lleged in its live petition, in early 2005 Mam a Fu ’ s executed a ten

- yea r l ease of commercial space in a n Austin shopping center at 11301 Lakeline Boule vard (the Shopping
Cen ter ) to operate its “ f

lagship ” restaurant

. Its landlord was 183 Parkline Shopping Center LP.
T he l ease contained : an option to exte nd t he lease for an additional fi ve years and an ex clusivity provi sion providing that “ Landlord will not execute any lease for space within the Shopping
Center with a tenant whos e primary business is the sale of As ian

- fus ion s tyle foo d. ” The lease
defined A si an
- fusion style food as “ As ian, Asian Fusion, wok cooked, nood le based, or oriental
food. ” After executing the lease, Mam a Fu ’ s “ spent considerable funds buil ding out its f lagship

res taurant ” and op ened for business in Fe b ruary 2 006

. As the “ exclusive pu rveyor of Asian

fusion food in the Shopping Cen ter, Mam a Fu ’ s business boomed , ” and it and 18 3 Parkline
executed a lease amendment in 2009 expand ing the lease ’ s squa re footage

. Thereafter, Mama
Fu ’ s “ invested additional f unds to exp and its flagship stor e. ”
In la te 2015, “ because business was good, ” Mama Fu ’ s began ne gotiating the extension option with its new landlord , 11301 Lakeline LP (Lakelin e)

. 2 One of the main negotiating points for Mama Fu ’ s was to rem ain the exclusive purveyor of Asi an
- fusi on s ty le
food i n the Shopping Center , and it “ repeatedly asked [ Lakeline ] about competin g p ro s pective

tenants. ” However, Lakeline allegedly “ conceal ed its simul ta neou s negotiations to sell the Shopping Center to one of the United States ’ largest purveyors of As ian food [H Mart Companies, Inc. ]. ” In late March 2016, Mama Fu ’ s and La keline executed the lease extensio n, retaining the ex clusivity provision.

2 By this t i me, 183 Parkline had sold the Shopping Cen ter t o Lakeline , wh ich is a defendant in this lawsuit but not a party to this appeal.3 Mama F u ’ s contends that t wo w eeks later, Lakeline executed an agreeme nt to se ll the Shoppi ng Center to ap pe llant IYK , which immediat ely assign ed its rights and interests in the Shopping Center to appellant Gran d Parkline

. Mama Fu ’ s shortly thereafter received a l etter informing it of Grand Parkline ’ s new address: “ H Mart Companie s, I n c. , ” in New Jersey.

In late 20 17, Ma ma Fu ’ s learned that the Asian supermarket chain H Mart would be opening a store in the Shopping Center and would be the c hain ’ s “ first [store] to feature a
food hall , ” to b e c a lled “ Market Eatery , ” feat uring “ m u ltip le food conce pts under one roof. ”
Each of the anticipated eateries would feature Asian food. Mama Fu ’ s alleges that appellants IYK, Grand Parkline, and H Mart Austi n LLC are “ entities with the s ame owners and e mpl oyees

as H Mart Co m panies I nco rporated, whi ch is one of the Unit e d St ates ’ largest purveyors of
As ian food. ”
Before th e February 20 1 8 gra nd opening of the H Mar t store in the Shopping Center, Mama Fu ’ s demanded that Grand Parkline c ure its material breaches o f the e xclusivity provisio n w ithin sixty days, as prov ided in t he lease. However, Grand Parkline “ unequivocall y
stat ed via letter that it would open [ the H Mart store ] in the Shopping Center and compete
with Mama Fu ’ s in vio lat ion of the [l]ease , ” allegedly repudiating the lease. After the H Mart

store open ed with t en Market Eatery tenants selling prepared Asian food , “ Mama Fu ’ s revenue steadily declined

. ” Mama Fu ’ s was eventually “ forced to

. . . vacate the pr e mises ” about a year
later d ue to a ppellants ’ allege d b reach of the exclusivity provision.

In it s o rigina l petition, Mam a Fu ’ s named as defendants 18 3 Parkline and its management company (collectively, the prior landlords) and Grand Par kline, asserting ca uses of action for breach o f contract against Grand Parkline and fraud against the prior landlord s
. Shor tl y thereafter, Mama Fu ’ s filed a first amended petition adding the two H Mart ent ities as4

defendants and asserting against them a claim for torti ous inter ferenc e with the leas e. Mama
Fu ’ s also a dded a cla im against all the defendants for conspira cy to comm i t fraud.

In its second amended , live petition , Mam a F u ’ s joined IYK as a defen dant and
asserted new claims of alter ego 3 and constructiv e ev iction against all four ap pellants

. Mama
Fu ’ s added a claim against the two H Mart entit ies and IYK f or breach o f contract and a claim
for cons piracy to commit fraud against I Y K. Within sixty days of the filing of Mama Fu ’ s

s econd ame nded p etiti on, a ppellants filed a T CPA motion to d ismiss cont ending that the “ newly
added claims . . . s quarely implicate [their] rig ht of free speech, a ssociation, and petition

. ”
Mama Fu ’ s responded, asserting that the motion was “ untimely and barred as to all
clai ms/the ories of recovery against Grand Parkline and [the two ] H Mart [entities] except for alter ego and constru ctive evict ion, and sh ould be d enied on that ba sis. ” Mama F u ’ s also

c onte nded that the TCPA d oes not apply, that th e commercial

- speech exception appli es, a nd that
i t ha d established a prima facie case for each of its claims.

T he trial court denied app ellants ’ moti on and aw arded atto rney ’ s fees and c ost s to
Mama F u ’ s. T his interlocutory appeal ensued.

DI SCUSSION
T CPA dismissal proc edure

The TCPA protects citizens from retaliatory la wsuits meant to intimidate or silence them on matters of pu blic c onc ern. Dallas M ornin g News, Inc. v. Hall , 579 S.W.3d 370, 376 (Tex. 2019); In re Lipsk y , 460 S.W.3d 57 9, 584 (Tex. 2015) (orig. proceed ing). T he stated

3 Mama Fu ’ s specifically allege d that the four appellant s have “ a unif ied e x istence ” an d

“ want to u se the corporate form to e sc a pe liability to Mama Fu ’ s [ and that] . . . it would be unjust to treat the . . . entities as sepa rate. ”5

purpose of the A ct is to “encourage and safeguard the constitutional rights of persons to petit ion,

s pea k freely, asso ciate freely, and otherwise participate in government to the maximum ex tent permitted b y law and, at the same time, prot ect t he rights of a person to file meritorious lawsuit s for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002 ; s ee ExxonMobil Pipel ine Co.
v. Coleman , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). To that end, th e TCPA provides a procedure to ex pedit e t he dismissal of a “legal action” brought to stifle the nonmovant ’ s exercise of the rights protected by the st at ute. See Youngki n v. Hines , 546 S.W.3d 675, 679 (Tex. 2018);

see also Tex. Civ. Prac. & Rem. Code §§ 27 .003(a), .005(b).

Under the TCPA , a p art y may file a motion to dismiss a “legal action ” if it is based on, relates to, or is in response to the p arty ’ s ex ercise of the righ t of free speech, right to petition, or right of association. See Tex. Civ. Prac. & Rem. Code § 27.003(a). Courts revie w
T CPA motions using a three

- step analysis. Youn gkin , 546 S.W.3d at 679. First, the party moving for dismi ssal m ust show by a pr epond erance of the evidence that the TCPA applies to the legal action ag ainst it. Tex. Civ. Prac. & Rem. Code § 27.005(b ). I f t he mova nt meets that burden, the nonmovant mus t establish by clear and specific evidence a prima facie ca se fo r ea ch
essential eleme nt of its claim. Id. § 27.005(c). If the nonmovant satisfies that requirement, th e burden shifts back to the movan t to pro ve each e ssential element of any valid defense s by a preponderance of the evidence. Id. § 27.005(d). “I n det e rmi ning whether a leg al action should be dismissed under [the TCPA], the court shall con sider the pleadi ngs and supporting and opposing a ffida vit s stating t he facts on which the liability or defense is based.” Id. § 27.006(a).
We review de novo whe ther e ach party met its res pective burden. See Long Canyon Phase II &
III Homeowners Ass ’ n v. Cashion , 517 S. W.3d 212, 218 (Tex. App.

— Austin 2 017, no pet.).6

Whether the TCPA applies

The applica ble version of the TCPA defines the “exercise” o f each of th e ri ghts

at issue

— the righ t of free speech and of association 4

— a s the making or submitting of a
“communication , ” which is “ a statement or docu ment i n any form or medium, including oral, visual, wr itten, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code § 27.001(1). It defi nes the “exercise of the right of association” as “a communication between individuals who join together to collectively express, promote, pur su e, or defend common interests , ” and the “exercis e of t he right of f

ree speech” as “a commu nication made in conne ction with a matter of public
concern.” Id. § 27.001 (2), (3). Thus, to meet their initia l burden, appellants w ere required to prove by a p re po nd erance of the evidence tha t the claims at issu e (a) are based on or related to
their com munications that were either (b) made in connection with a matter of public concern or (c) with one or more indi vidual s with whom appellants had joined to c o lle ctively promote or
pursue common interests. See i d. § § 27.001, .005( b).

In determining whethe r appellants met their initial burden, we focus on
Mama Fu ’ s pleadings, which are the “best and all

- sufficient e vidence of the nature of the action.”
Hersh v. Tatum , 5 26 S.W.3 d 462, 467 (Tex. 2017) (“The basis of a legal action is not determined by the de fendant ’ s admissio ns o r denials but by the plaintiff ’ s allegations.” (citations omitted)).
From Mama Fu ’ s plea dings we determine whether the factual bases o f t he chall enged claims
constitute “expression” withi n th e TCPA ’ s defi nitions. See Sloat v. Rathbu n , 513 S.W.3d 500,
503 (Tex. App.

— Austin 2015, pet. dism ’ d). In determining the factual bases for the challeng ed claims, we consider the pleadings and othe r ev idence i n the light mo st favorab le to the

4 While appellant s asserted in their TCPA motion that Mama Fu ’ s live petition asser ts claims imp l icating the ir right to petition , they have abandoned t h at argument on app eal.7

non movant below , “favoring the conclusion that [the no nmovant ’ s ] claims a re not predicated on protected expression.” Id. at 504; see Tex. Civ. Prac. & Rem. Code § 27.006(a).

“ Comm unicati on s ” at is sue
T h e parties dispute whether Mama Fu ’ s ha s all eged that appellants made any

“ communica tions ” at al l ( whi ch w ould bring th e TC P A into play ) or merely took “ actions ” ( which would preclude application of the TCPA)

. See Bumjin Park v. Suk Bal dwin P rops., L LC , No. 0 3

- 18

- 00025

- CV , 2018 WL 4905717, at * 3

– 4 (Tex . App.

— Austin Oct. 10, 2018, no pet.) (mem. op.) (conc luding that TCPA did n ot apply to claims that were based sol ely on conduct
rather than communications). However, because the TCPA defi nes “ c ommunica tion ” so broadly ,

see Tex. Civ. Prac. & Rem. C ode § 2 7.001(1) ; Adams v. Starside Custom Builders , LLC , 547 S.W.3d 890, 894 (Tex. 201 8) , we assume without deciding that the following allegations in
Mama Fu ’ s petition fit the TCPA ’ s definiti on of c ommunication s : the execution of the lease

e x tension a nd agreement to sell t he Shoppin g Center ; the sending of a lett er informing
Mama F u ’ s to direct all inquir ies about the lease to H Mart Com pa nies, In c
. , with a New Jersey mailing address and “ hma rt.com ” email address ; the requesting of a pot ential Market E atery

t enant (Agu Rame n) to complete a lease applicatio n upon A gu Ramen ’ s inquiry abo ut whether
Mama Fu ’ s had a right to exclusivity ; the statement made to Mama Fu ’ s that the H Mart

store would open , in repudi ation of the lea se ; and th e conspiring to fraudulently conc eal the pending sale of the Shopping Center to appe llants ( which presumab ly “ necessari ly involved ”
communic ations) , s ee Abatecola v. 2 Savages Concrete Pumping, LLC , No. 14

- 17

- 00678

- CV,
2018 WL 311 8601, at *7

– 8 (T ex. App.

— Houston [14th Dist.] June 26, 2018, p et. denied) (mem. op.) (determining that conspir acy claims ag ainst def endant “would necessarily have required8

comm unications” )

. We therefore c onsider whether these alleged communications are the type

cove red by the TCPA

.
Exercise of the righ t of free spe ech Appellants contend that the above

- listed communi cations were “ m ade in connection with a matter of public concern. ” See Tex. Civ. Prac. & Rem. Code § 27.001. The applicable version of t he A ct defines a “matt er of public concern” to include an issue related to “a good, product, or service in the marketp lace.” I d. § 2 7.001(7 ) (E). App ellants submit that the subject communications were about Asian food ( i.e., a “ go od ” or “ pr oduct ” ) and th e lease of commercial space (i.e ., a “ service ” ) in the marketplac e and t hus meet the st atutory definition

.

However, the Texas S uprem e C ou rt has recently d etermined t hat the former
version of the statute ’ s reference t o g oods, produc ts, or services “in th e marketplace” suggests
that t he communicatio n about goods or services “must have some relevance to a wider au dience

o f potential buyer s or sellers in the marketplace, as o pposed to c ommunications of relevance only to t he parties to a parti cular transactio n.” Creative Oil & Gas, LLC v . Lona Hills Ra n ch,
LLC , 591 S.W.3d 127, 134 (Tex. 2019) ( in trespass lawsuit b r o ught by oil

- and

- gas less or a gainst
lessee , concluding that TCPA did not apply to lessee ’ s coun ter claim alleg ing that lessor falsely
communicated to third

- party purchaser of lease production that lease had terminat ed and lesse e was not entitled to payments , because those communica tions were not made in connection with

“ matter of public concern ” ) ; see C rossroads Cattle Co. v. A GEX Trading, LLC , 607 S .W.3d 98 , 103 (Tex. A pp.

— Austin 20 20, no pet.) ( following Creat ive Oi l & Gas and h old ing that
communi cations “ necessari ly involved ” in cattle sale that rela ted to all eged tor tious interf erence with contract a nd conspiracy to commit breach of fiduciary duty did not have re levance to9

wider audience beyond parties to tra nsacti on and, thus, that TC PA did not apply). As the supreme court fur ther elaborated : “Given the ‘in the marketplace ’ modifier, the TCPA ’ s reference to ‘a good, product, o r service’ does not swallow up every contract dis pute arising
from a communication about the contract.” Creative Oi l & Gas , 591 S .W.3d at 134 (referrin g to
former Tex. Civ. Prac. & Rem. Code § 27.001(7)(E) )

.

In light of this preceden t, w e cannot rea sonably conclude that the chall enged
communic ations appellants made to each other, to the prior landlords , or to Mama Fu ’ s had any relevance to a “ public audi ence of potential buyers and sellers ” beyond th e parties to the
p articular p rivate transa ctions at issue (i.e., th e sale of the Shopping Center and negotiation , execution, and performance of the lease). See Cr eative Oil and Gas , 591 S.W.3d at 134

– 35 ( “ The words ‘ good, produc t, or service in the marketplace, ’ however, do not paradoxi cally enlarge the concept of ‘ matters of public concern ’ to include matters of purely private concern. ” )

. Furthermore, a s in Creative Oil a nd Gas and Crossroads Cattle , the reco rd here is devoid of allegations or evidence that the d isp ute arising from a ppellants ’ alleged communication to
third party Agu R amen

— asking it to fill out a rental application, which allegedly consti tuted a
breach of the exc lus ivity provision

—had “ any rel evance to the broader marketplace or otherwise could be reasonably characterized as in volving public concerns. ” Id. at 13 6 ( “ [T]he alleged

commu nications were made to two private [third] parties concerning modest production at a single we ll. Th ese commun ications, with a li mited business audience concerning a private contract dispute, do not relate to a matter of pu blic concern under the TCPA. ” ) ; see Crossroads
Cattl e , 607 S.W.3d at 103 (concluding that defendan t ’ s communication s with third party that
alle gedly tort i ously i nterfered with contract b etween plaintiff and third party were not covered by TCPA because they had no relevance to wider audience of p otential buyers and sellers b eyond10

particular transaction at issue )

. Rathe r, the alleged Agu Ramen com mu nication and dispute arising therefrom “ affect [] only the fortunes of th e private parties involve d and [are] simply not a

‘ matter of public concern ’ under any tenable understanding of those words. ” Creative Oil &
Gas , 591 S.W

. 3d at 137. Accordingly, we conclude that Mama Fu ’ s claims are not based on,
related to , or in res ponse to appellants ’ exercise of the ir right s of free sp eech as defined in the
TCPA and that the A ct does not appl y on that b asis

. See Tex. Civ. Prac. & Rem . Code § 27.001(7)(E)

.

Exe rcise of the right of assoc iation Appellants secondly contend that Ma ma Fu ’ s claims are related to
communications amongs t themselves, with the fo rmer landlords, or with Ag u Ramen

— parties
with whom appellants had “ joined to collective ly pursue or promote commo n interest s
. ”
See Tex

. C iv. Prac. & Rem. Code § 27.001. The “ common interests ” app ellants identif ied in
their TCPA motion are the (1) “ negot iating , ex ecutin g , and u ph olding ” of the l eas e , and the (2) operation of the H Mart stor e . However, as this C ourt recently held in Cros sroads Cattle , it is not sufficient for a TCPA movant to merely ide ntify the so
- called “ common ” interest of consummating a particular transaction in the absence o f a specific common int erest b eyond that

trans action. See 607 S .W.3 d at 105

.

To determ ine whether any of the alleged comm unications were among individuals who had joined together to collectively pu rsue or pr omot e the asserted comm on intere sts, we

must individually consider the particula r com munications at issue 5 :

5 We exclude from our consideration alleged communications tha t occurre d among appe llants and Mama Fu ’ s, as appellants have not contended that they had joined togeth er with Ma m a Fu ’ s to c ollectiv ely pursue or promote anything , m uc h l e ss “ common inte rests

. ”11 1. T he p r ior landlords ’ and appellants ’ execution of a n agreement to sell the Shoppin g Center ; 2. The prior landlords ’ and appellants ’ communicati ons n ecessarily involved in allegedly con spiring to fraud ulently conc eal the pending sal e of the Shoppi ng Center ; and
3. A p pe llants ’ request of Agu Ramen to complete a lease applicatio n for Market Eatery space

.
As to the first and second categories of communications , we find no evidence or allegation in the record that the pri or la ndlords and appellants had joined toge ther t o pursue or
pr omote either ass erted common interes t

— that is, the negotiation, ex e cution, or enforcement of
the lease or the operation of the H Mart stor e. M oreover, appellants have not demonstrated that
the y shared any spe c ific common i nterest with the pr io r landlords other than mere consu mmation
of the sa les transaction

. As we held in Crossroads Cattle , the m ere conduc ting of business together as buyer and seller is not sufficient on its own to meet the st atutory defin iti o n of

exe rcising the right of ass oc i ation. See 607 S .W.3 d at 105

. We thus conc lude that appellants
have not met their burden to demonstrate that the TC PA app lies based on the f irst and second categories of alleg ed communi ca tions listed above.

We re ach the same conclusion a s to th e t hi r d alleged c ommunicatio n because

a ppell ants and Agu Ramen can not rea s onably be considered, on th is record, to have been collectively pursuing or promoting a ny common interest apart from p ote ntially esta blishing a lan d lo rd

- tenant rel ationship, which is a nal og ous to conducting bus iness as mere bu yer and seller , which we have pre viously held i s insufficient, without more, to constitute “ joining together ” to

“ collectively pursue or promot e a common interest ” under the TCPA

. See Crossroads Cattle , 607 S .W. 3d at 1 05. Appel lants have not cont ended , and Mama Fu ’ s has not pleaded, that Agu R amen had an ything to do with the lease at issue or with operat ion of the H Mart store

.12

Howe ver, even if Agu Ramen had been involved in eith er of those vent ures, we ca nnot o n thi s record gl ean the respective individual interests of Agu Ramen and appellants in potentially consummating the landlord

- tenant relationship or, therefore, whether the interests wer e the same,
and we must view the plead ings in Mama Fu ’ s favor. S ee id. at 1 02 , 105. We thus conclude that appellants have not met their burden to demonstrate that the TC PA app lies based on the third
communication listed above

.

Having conclud ed that none of Mama Fu ’ s claims is based on, re lated to , or in

res ponse to ap pel lants ’ alleg ed exercis e of the right of association as defined in the TCPA , we hold that the A ct does not apply on that ba sis. Also, b ecause appellants did not meet their initial
burden to demonstr ate t hat the TCP A applies to the claims at issue, we need not a dd ress t heir
othe r arguments about whether the c ommercial

- speech exemption applie s , whether the trial court erred in overruling their evid entiary object ions, whether Mama Fu ’ s met its pr ima facie burd e n
as to ea ch of i ts claims, or whether the TCPA mo tion wa s untimely as t o certain claims

. See Tex. R. App. P. 47.1, 47.4

.
Award of a ttorney ’

s fees
I n their second is sue, a ppellants contend that t he trial court abused its dis cre tion in awarding Mama Fu ’ s its at torn ey ’ s fees and costs

. See Tex. Civ. Pr ac. & R e m. Code § 27 .009( b ) ( “ If the court finds that a motion to dismiss filed under this chapter is frivolous or sole ly int ende d

to delay , the court may award court costs and reasonable attorney ’ s fees to the res ponding party. ” ) ; Sullivan v. Texas Ethi cs Com m ’ n , 551 S.W.3d 848, 857

– 58 (Tex. App.

— Austin 2018, pet. denied ) ( “ A party seeking attorney ’ s fees and costs bears the burden to p ut forth evidence regarding its right to the award , ” and “ we rev iew a trial cour t ’ s dec ision to a ward attorney ’ s13

fees fo r an ab us e of discreti on
. ” ) . Although the trial court did not make express finding s that appellants ’ motion was frivolo us or solely in tended to delay, w e review the evidence upon which
Mam a Fu ’ s rel ied t o dete rmine whether it i s suffi cient to s upport an i mp lie d fi nding under ei ther
prong
. See Sullivan , 551 S.W.3d at 857

– 58 (reviewing legal sufficiency of evidence to supp ort finding tha t m otion was solely intended to delay and reviewing de no vo whet her m otion was
f rivolous ) ; Daimler

- Benz Aktiengesellschaft v . O ls on , 21 S.W.3d 7 0 7, 715 (Tex. App.

— Austin 2000, pet. dis m ’ d w.o

.j. ) (noting that when t rial court does not make express finding, all fact findings necessary to support judgment are implied, an d app ellate cour t must up hold implied finding if sufficien t evi de nc e supports it)

.

Although we have determined that the TCPA does not apply to the claims at
issue , we cannot conclude that appellants ’ motion was f rivolous because , when t hey fi le d their motion, ap pellants did not have the benefit of Creative Oil a nd Ga s and Crossroa ds Cattle , which , as discussed above, h ave e ffectively closed the door on the arguments appellant s made in
their TCPA motion. See Su llivan , 551 S.W.3d at 857

– 58 (concludin g that trial court abused
disc retion in finding that T CPA motio n was f ri volous because appellant ’ s arguments did not lack legal or factual ba sis ) ; see also Keane Frac, LP v. SP Silica Sales, LLC , 608 S.W.3d 416, 433 (T ex. App.

— Houston [1st Dist.] 2020 , n o pet. ) ( revers ing fees award ba sed on trial court ’ s frivol ity find ing b ec ause “ there was at least a colorable basis in law and fact ” for TCPA motion
due to “ un cl e ar state of the law at t he time ” appellant fi led motion because supreme court had not yet decided C reative O i l & Gas )

. There fore, t o the extent that the trial court a warded fees and costs on the basis of a finding that appellants ’ motio n was frivolous, we conclude that the
trial cour t abused its discretion

. See Su llivan , 551 S.W.3d at 857

.14 As to whether Ma ma Fu ’ s met its b urden to put forth legally sufficient evid en ce
to support a finding that the motion was solely intended to delay, we conclu de that it did not.
See id. ( conc lu ding that ev idence was l egally in sufficient to support finding that delay was so le

r eas on for fil ing TC PA motion ). In requesting an aw ard o f fees in its r e s p onse to appellants ’
TCPA motion , M a ma Fu ’ s addressed merely the f rivol ity prong and only sum m arily so : “ As
demonstrate d above [ in argumen t as to why TCPA did not apply ] , Def endants ’ mo tion is w ithout

me rit. ” On appeal, Mam a Fu ’ s supports t he trial court ’ s implied delay finding by asserting that
appe llants “ waited appr oximately nine months and conducted ex tensive disc o very ” befor e filing
the ir motion

. While nine months had elapsed betw een when Mama Fu ’ s file d its original petition
and whe n appellants filed their TCPA motion, the motion was filed with in sixty days of the filing
of Mama Fu ’ s second amende d ( liv e) petition , making it an appropriate and timely vehicle to challenge the newly pleaded claims. See T ex. Civ. Prac. & Rem. Cod e § 27 .0 03(b ) ( requiring
TCPA motion to be file d within sixty days o f service of l ega l action ) ; Jordan v. Hall , 510 S.W.3d 194, 198 ( Tex. Ap p.

— Houston [1st Dist.] 2 016, no pet.) (noting that amended petition asserting new clai ms ba sed upon new factual allegation s ma y reset TCPA dea dline as to
new claims )

. While Mama Fu ’ s challenged t he timeliness of the mo tion by contending that some
of the c lai ms it asserted in its second amende d petit ion were not new, it co nc ed es that some o f its
claims were new . F urthermore, w e cannot reasonably conclude that appellants ’ conductin g of
di scovery in the nine

- month period before Mama Fu ’ s a mended its petitio n to add new claim s

—

w itho ut mor e

— demonstrates that their subsequent f iling of a TC PA mo tion to dismi ss the new ly
added clai ms wa s motivated solely by delay. Accordingly, we conclude that the trial court abused its discretion in impl iedly fi nding that appellant s ’ mot ion was frivolo us or solely intende d to delay and aw arding Mama Fu ’ s its att orney ’ s fees and costs

.15 CONCLUSION
W e reverse the portion of the trial court ’ s order awarding Mama Fu ’ s its attorney ’ s fees and costs and render judgment that M ama Fu ’ s take nothing. We ot herwise
affirm the trial court ’ s o rde r.

_______ ____________________ _______________ Thomas J. Baker , Justice
Before Chief Justice Rose, Justices Baker and Kelly
Affirmed in P art ; Reversed and Rendere d in Par t
Filed: Dec ember 2 , 2020