Opinion filed November 2 7 , 2019



### In The 

# Eleventh Court of Appeals

__________ No. 11
- 1 9
- 00099
- CV

__________ CALIBER OIL & GAS, LLC , Appellant V. MIDLAND VISIONS 2000, ROGER HENDERSON, AND TONEY HENDERSON , Appellee s
On Appeal from the 441st District Court Midland County , Texas Trial Court Cause No. CV54602

O P I N I O N This lawsuit concer ns the ownership of 10.6 acres of land i n Midland, Texas. Appellant, Caliber Oil & Gas, LLC, and Appellees, Midland Visions 2000, Roger Henderson, and Toney Henderson, all claim to own undivided interest s in the property

. Caliber sued Midland Vision s and the Hendersons, as well as other individuals who are not parties to this interlocutory appeal, seeking to quiet title to2 the property and to recover a proportionate share of the ad valorem taxes on the property that Caliber had paid

. 1 Caliber also alleged that Midland Visions and the Hendersons filed fraudulen t records pertaining to the property and that Midland Visions and Roger Henderson tortiously interfered with a contract between Caliber and a realtor. Midland Visions filed counterclaims against Caliber for tortious interference with contract and, alternatively, tortious interference with prospective business relations. 2 The Hendersons filed counterclaims against Caliber for tortious interference with prospective business relations. 3 P ursuant to the Texas Citizens Participation Act, T EX

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. §§ 27.001

– .011 (West 2015 ) (the TCPA), 4 Caliber filed a motion to dismiss Appellees’ tortious interference counterclaims and the Hendersons’ request that Caliber’s claims be dismissed

. The trial court denied the motion to dismiss, found the motion was frivolous and intended to delay, and awarded Midland Visions $34,872.50 for reasonable court costs and attorney’s fees.

1 Cal iber also asserted a trespass to try title claim. However, a page of Caliber’s original petition is missing, and we are unable to ascertain the details of that claim.

2 Midland Visions also filed counterclaims against Caliber for trespass to try title and for waste. Caliber did not move to dismiss these counterclaims.

3 The Hendersons also f iled counterclaims in which they (1) alleged that Caliber used “illegal and unethical tactics” to obtain interests in the property and knowingly filed fraudulent documents and (2) requested that Billie Ruth Henderson’s interest in the property be awarded to them. Caliber did not move to dism iss these counterclaims.

4 The Texas l egislature amended the TCPA effective September 1, 2019. See Act of May 17, 2019 , 86th Leg., R.S., ch. 378, § § 1

– 9, 12 (H.B. 2730) (to be codified at T EX

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. §§ 27.001, .003, .005

– .007, .0075, .0 09

– .010)

. Because the und erlying lawsuit was filed prior to September 1, 2019, the law in effect before September 1 applies. See id. §§ 11

– 12 . For convenience, all citations to the TCPA in this opinion are to the version of the statute prior to Septembe r 1, 2019. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961

– 64, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499

– 2500

.3 In its first two issues, Caliber asserts that the trial court erred when it determined (1) th at the TCPA did not apply to Appellees’ tortious interference counterclaim s and the Hendersons’ request that Caliber’s claims be dismissed and (2) that Appellees met their burden to establish by clear and specific evidence a prima facie case for each essential element of the counterclaims. In two additional issues, Caliber contends that the trial court erred when it failed to award attorney’s fees, costs, and sanctions to Caliber and awarded attorney’ s fees and costs to Midland Vi sions

. We hold (1) that Caliber failed to carry its burden to establ ish that the TCPA applies to Appellees’ tortious interference counterclaims and to the Hendersons’ request that Caliber’s claims be dismissed and (2) that the trial court did not abuse its discre tion when it determined that Caliber’s motion to dism iss was frivolous. W e affirm the trial court’s order

. Background In 1946, Charlie and Phyllis Lewis acquired a 10.6

- acre tract of land in Midland. Bot h of the Lewises died intestate , and after Phyllis’s death in 1991 , the Lewises’ seven children inherited the property

. Over the next twenty

- five years, interests in the property were transferred by conveyance and by inheritance. Caliber alleges that , by January 2018 , t hirty

- five individuals owned an interest in the north 7.1 acres of the tract and thirty

- six individuals owned an interest in the south 3.5 acres of the tract. The interests at issue in this appeal are those owned by Billie Ruth Lewis Henderson, Patricia S mith Whitley, LaSundra Selmon, and Rhonda Clement

. Billie Ruth is the Lewises’ daughter and the Hendersons’ mother. Billie Ruth inherited a 1/7 interest in the property when her mother died in 1991 and inherited additional interest s in the property when her brother s , James Howard Lewis and J.D. Lewis, died in testate in 2009 and 2011 , respectively

. On September 13, 2013, Billie4 Ruth conveyed her “undivided one

- fourth (1/4) interest” in the property to the Hendersons. 5 Charlene Lew is Smith Brown inherited a 1/7 interest in the property when Phyllis Lewis died. Brown inherited additional interests in the land from both James Howard Lewis and J.D. Lewis and, a fter J.D.’s death, owned a 1/5 interest in the north 7.1 acres and a 6/35 i nterest in the south 3.5 acres. On September 13, 2013, Brown conveyed her interest in the property to Whitley, Selmon, Clement, and Rashon Cooks

. After the conveyance, each of these individuals owned a 1/20 interest in the north 7.1 acres and a 3/70 interest in the south 3.5 acres. On June 29, 2015, Rashon conveyed his interest in the property to Robert Cooks. On September 12, 2013, the Henderson s communicated to individuals who owned interests in the property that taxes were owed on the property. The Hendersons requested that the owners part icipate in the payment of taxes and stated that anyone who participated in “saving” the property would “re

- coupe [sic] their tax money pa id” when the property was sold before the remaining money from the sale was distributed to “all the heirs.” A group of individuals who owned interests in the property agreed to an installment contract with the Midland County Central Appraisal District on September 12, 2013, to pay the taxes for years 2008 through 20 1 2 . Between September 12, 2013, and April 21, 2015, various individuals paid approximately $16,000 to the Appraisal District for back taxes and fees as well as fo r new taxes that had been assessed

.

5 Cal iber and Midland Visions allege that, on November 29, 2003, Billie Ruth and her brother, James Howard Lewis, conveyed their interests in the south 3.5 acres of the property to Dawnyaell Shelby. Caliber also alleges that, on July 29, 2009, Billie Ruth conveyed her original 1/7 interest in the north 7.1 acres to Bobby Joe Lee and that, on September 13, 2013, Billie Ruth conveyed to the Henderson s only the interest in the property that she inherited in 2011 . The Hendersons contest the validity of the 2003 conveyance to Shelby and the 2009 conveyance to Lee. The validity of any conveyance is not at issue in this appeal.5 Be tween 2013 and 2017 , the Apprais al District increased the appraised value of the property from $46,170 to $323,220 to over $500,000 . The Appraisal District told the Hendersons that, due to a new law, they could not sign another agreement to pay the taxes in installments. After the taxes were not paid timely, the Appraisal District posted the property for sale on March 6, 2018. Joel Gordon ’s law firm is Joel Amos Gordon, Esqu ire, PLLC. The PLLC is a member of Caliber. The other member of Caliber is Dahlia Land Services, LLC. J ames Brian Hillman and his wife are the members of Dahlia. The PLLC and Dahlia are individually involved in project s separate from Caliber. However, if both Hillman and Gordon are inte rested in a project, they use Caliber as the “ vehicle” for that particular deal

. Gordon saw that the property was posted for sale and asked Hillman if he was interested in acquiring interests in the property. Hillman was interested in the property and, i n early February 2018, sent approximately fifty letters on behalf of Caliber o ffering to purchase individual interests in the property

. Caliber specifically offered to purchase the interest s owned by Whitl ey, Selmon, and Clement. Midland Visions was also interested in purchasing interests in the property. O n February 27, 2018, Midland Visions agreed to pay Whitley, Selmon , and Clement $2,000 each for their interest s in the property

. On March 1, 2018, Whitley, Selmon, and Clement signed deed s that conveyed their interest s in the property to Midland Visions and sent the deed s to Mac A. Starnes, an attorney who was serving as an intermed iary between the parties. Midland Visions deposited $6,000 with Starnes and instructed him to transmit the funds to Whitley, Selmon, and Clement after he confirmed that each woman owned an interest in the property. Around March 1, 2018 , Gordon placed bu siness card s for the PLLC on the doors of Whitley’s and Robert Cooks’ s houses. Gor don wrote a note on each card6 tha t stated that he was interested in purchasing intere sts in the property. On March 2 , 2018, Whitley informed Gordon that she had already agreed to sell her interest in the property. Gordon checked the public records and did not find a conveyance o f Whitley’s interest in the property

. Whitley called Gordon on March 4, 2018, and told him that the contract for her interest in the land required that she, Selmon, Clement, and Robert Cooks al l agree to sell their interests ; that Cooks refused to sell his interest; that she had not

r e ceived any money from the buyer; and that the contract had fallen through. Gordon agreed to pay Whitley, Clement, Selmon, and Cooks $5,000 each for their interests in the property. Gordon contacted Hillman, who is a notary, and asked him to obtain deeds from Whitley and Cooks. Around midnight, Hillman went to Whitley’s house. Whitley told Hillman that she, Clement, and Selmon had signed deeds that conveyed their interests in the property to Midland Visions

. Hillman called Selmon and Clement, and all three women told him that they ha d not received payment from Midland Visions. Hillman, who is not an attorney, assumed that, if the consideration had not been paid, the prior deeds were not valid. Even though he recognized that it w as a “risk,” Hillman had Whitley sign a deed that conve yed her interest in the property to the PLLC

. 6 Hillman notarized the deed

. Hillman paid Whitley for her interest and the interests of Selmon and Clement with checks written on Caliber’s bank account. Gordon checked the public r ecords on the morning of March 5 th to ensure that no deed that conveyed Whitley’s, Selmon’s, or Clement’s interest in the

6 Gordon was concerned that, because Hillman owned an interest in Caliber through Dahlia, “there might be some impropriety” if Hillman notarized a deed that conveyed propert y to Caliber. Both Gordon and Hillman intended that the PLLC would convey the interests in the property to Caliber. On March 21, 2018, the PLLC executed a deed that conveyed its interest in the property to Caliber.7 property had been filed. Either Hillman or Go rdon filed the deed signed by Whitley in the public records at 8:18 a.m. on March 5, 2018. Later that day , Selmon and Clement signed deeds that conveyed their interests in the p roperty to the PLLC . Selmon then told Midland Visions that s he had executed a deed to another purchaser because she had not received payment from Midland Visions. At 3:19 p.m. on March 5, 2018, Midland Visions filed in the public records the March 1, 2018 deeds that conveyed Selmon ’ s and Clement ’s interest s in the property to Midland Visions

. At 10:14 a.m. on March 6, 2018, Gordon filed in the public records the March 5 , 2018 deeds that conveyed Selmon ’s and Clement ’s interest s in the property to the PLLC. Caliber paid the Appraisal District $60,092.87 for back taxes on the property , and the property was r emoved from the tax sale

. O n March 6 , 2018, the Hendersons filed in the public records a “Lien for Nonpayment of Taxes” against the interests of Ervin Lewis, Dawnyaell Shelby, and Bobby Joe Lee. The Hendersons stated that they had paid $8,400 of the “back taxes” to “bring the property out of delinquency in 2013” and that Lewis, Shelby, and Lee had not contributed to those payments. Starnes sent checks for $2,000 to Selmon and Clement on March 7, 2018, and to Whitley on April 30, 2018

. None of t he three women cashed the checks

. On May 1, 2018, Midland Visions filed in the public records t he March 1, 2018 deed that conveyed Whitley’s interest in the property to Midland Visions. Caliber hired a realtor to sell the property. Caliber alleges that, a fter Arlene Love of Midland Visions s aw the “For Sale” sign, she contacted both t he realtor and Roger Henderson and that Roger also called the realtor. The property was subsequently taken off the market. Caliber sued Midland Visions, the Hendersons , and other individuals who owned interest s in the property. Caliber sought to recover a proportionate share of8 the taxes that it had paid and to quiet title in the property. Caliber also alleged that Midland Visions and the Hendersons had filed fraudulent record s and that M idland V isions and Roger Henderson tortiously interfered with Caliber’s contract with the realtor. As relevant to this appeal, Midland Visions filed counterclaims against Caliber fo r tortious interference with Midland Visions’ contracts with Whitley, Selmon, and Clement or, alternatively, fo r tortious interf erence with prospective business relations. The Hendersons, appearing pro se, filed counterclaims against Caliber for tortious interference with the Hendersons’ prospective contract to sell their interests in the property to Midland Visions

. The Henderso ns specifically alleged that Caliber offered them more money for the ir interests than Midland Visions had offered but that Caliber had no intention of actually buying their interests

. As a “counterclaim,” t he Hendersons also requested that the trial court dismiss all of Caliber’s claim s. Caliber filed a TCPA motion to dismiss (1) Midland Visions ’ counterclaims for tortious interference with contract and tortious interference with pro spective business relations, (2) the Hender sons’ counterclaim for tortious interference with prospective business relations , and (3) the Hendersons’ request that Caliber’s claims be dismissed

. Midland Visions and Roger Henderson responded to the motion. The trial court denied the motion, found th at the motion was frivolous or brought to delay, and awarded Midland Visions $34 ,872.50 for reasonable costs and attorney’s fees. The trial court made findings of fact and conclusions of law that Caliber failed to establish that the TCPA applied to the co mplained

- about legal actions , that Midland Visions established by clear and specific evidence a prima facie case of9 each element of its tortious interference counterclaims , and that Caliber’s motion to dismiss was frivolous and solely intended to delay. 7 Analysis In its first two issue s , Caliber asserts that the trial court erred when it determined (1) that the TCPA does not apply to Appellees’ tortious interference counterclaims and to the Hendersons’ request that Caliber’s claims be dismissed and (2) that Appellees established by clear and specific evidence a prima facie case for each essential element of the tortious interference counterclaims

. The TCPA The TCPA protects citizens from retaliatory lawsuits meant to intimidate or silence them on matters of public concern. Dallas Morning News, Inc. v. Hall , 579 S.W.3d 370, 376 (Tex. 2019); In re Lipsky , 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). T he stated purpose of the TCPA is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” C IV

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. § 27.002; see also ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam ). We construe the TCPA “liberally to effectuate its purpose and intent fully.” C IV

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. § 27.011(b); see also State ex rel. Best v. Harper , 562 S.W.3d 1, 11 (Tex. 2018). The TCPA provides a procedure to expedite the dismissal of a “legal actio n” that appears to stifle the nonmovant’s exercise of the rights protected by the statute. Youngkin v. Hines , 546 S.W.3d 675, 679 (Tex. 2018); see also C IV

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. §§ 27.003(a), .005(b). The movant bears the initial burden to show by a

7 On June 25 , 2019, the Hendersons info rmed this court that they would not submit a brief in this appeal because the trial court “only submitted the Fact Finding and Conclusion of Law of Midland Vision.”10 preponderanc e of the evidence that the legal action is based on, related to, or in response to the movant’s exercise of the right of free speech, the right of association, or the right to petition. C IV

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. §§ 27.003(a), .005(b); Youngkin , 546 S.W.3d at 679

. If the movant makes this showing, the burden shifts to the

non movant to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. C IV

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. § 27.005(c); Youngkin , 546 S.W.3d at 679 . Even w hen the non movant satisfies this burden, the trial court must dismiss the legal action if the movant “establishes by a preponderance of the evidence each essen tial element of a valid defense to the nonmovant’s claim. ” C IV

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. § 27.005(d) ; see al so Youngkin , 546 S.W.3d at 679

– 80 . We review de novo the trial court’s determination of whether the parties satisfied their respective burdens. Hall , 579 S.W.3d at 377. Applicability of the TCPA In its first issue, Caliber contends that the trial court erred when it determined that the TCPA does not apply to Appellees’ counterclaims because (1) Midland Visions’ and the Hendersons’ tortious interference counterclaims are based on, related to, or in respo nse to Caliber’s exercise of the right of associati on and right of free speech and (2) the Hendersons’ request that Caliber’s claims be dismissed is based on, related to, or in response to Caliber’s exercise of its right to petition

. Whether the TCPA applies to a legal action is an issue of statutory interpretation that we review de novo. Youngkin , 546 S.W.3d at 680

. When we conduct this analysis, we interpret the statute’s language as a whole, rather than reading its individual prov isions in isolation from one another. Id. “ [W]e ascertain and give effect to the Legislature’s intent as expressed in the language of the statute, ” Harper , 562 S.W.3d at 1 1 (quoting City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008)) , and c onst rue the statute’s words “ according to their plain and11 common meaning, unless a contrary intention is apparent from the context , or unless such a const ruction leads to absurd results, ” Youngkin , 546 S.W.3d at 680 (quoting Hughes , 246 S.W.3d at 625

– 26) ; see also Lipsky , 460 S.W.3d at 590 ( “Words and phrases that are not defined by statute and that have not acquired a special or technical meaning are typically given their plain or common meaning .”). To determine if a legal action falls within the scope of the statute , we consider the pleadings and the suppo rting and opposing affidavits in the light most favorable to the nonmovant

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. § 27.006(a) ; ETC Tex. Pipeline, Ltd. v. Addison Exploration & Dev., LLC , 582 S.W.3d 823, 832 (Tex. App.

— East land, 2019, pet. filed) . If “a holistic review of the pleadings” demonstrates that the “legal action” is c overed by the TCPA, the movant need show no more. Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 897 (Tex. 2018); Hersh v Tatum , 526 S.W.3d 462, 467 (Tex. 2017)

. Each of the rights protected by the TCPA requires a “communication.” C IV

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. § 27.001(2)

– (4). The TCPA defines a “communication” to include “the making or submitting of a statement or document in any form or medium , including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). Caliber’s statements to Whitley, Selmon, Clement, and the Hendersons that underlie the tortious interference counterclaims are “communications” as defined by the TCPA. A. Right to Petition The exercise of the right to petition under the TCPA includes a communication in a judicial proceeding. Id. § 27.001(4)(A)(i). Caliber argues that the TCPA applies to the Hendersons ’ request that Caliber’s claims be dismissed because Caliber exercised its right to petition when it filed a communication, its original petition, in this judici al proceeding and, in response, the Hendersons filed a “legal action” that requested that Calib er’s claims be dismissed.12 The TCPA defines a “legal action” as a “lawsuit, cause of action, petition, complaint, cross

- claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” Id. § 27.001(6). We first no te that, although denoted as a “counterclaim,” the Hendersons’ request that Caliber’s claims be dismissed does not allege a substantive cause of action. Rather, the request is more akin to a prayer that Caliber take nothing on its claims. See In re J.Z. P. , 484 S.W.3d 924, 925 (Tex. 2016) (per curiam ) (“We have stressed that ‘courts should acknowledge the substance of the relief sought despite the formal styling of the pleading.’” (quoting Ryland Enter., Inc. v. Weatherspoon , 355 S.W.3d 664, 666 (Tex. 2011) (per curiam ) ) ); State Bar of Tex. v. Heard , 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding). We cannot conclude that a defendant’s prayer that the plaintiff “take nothing” on its claims is a “counterclaim” such that it is a “legal action” under the TCPA. See BHP Petroleum Co. v. Millard , 800 S. W.2d 838, 841 (Tex. 1990) (orig. proceeding) (“To qualify as a claim for affirmative relief, a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff’s claim, on which he could recover benefits, compensation o r relief, even though the plaintiff may abandon his cause of action or fail to establish it.” (quoting Gen. Land Office v. OXY U.S.A., Inc. , 789 S.W.2d 569 , 570 (Tex. 1990) ) ). Under the statutory definition, the Henderson s ’ request that Caliber’s claims be dismissed could also constitute a “legal action” if it is a “judicial pleading that requests legal or equitable relief.” See C IV

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. § 27.001(6). I n Deepwell Energy Services, LLC v. Aveda Transportation & Energy Services , 574 S.W.3d 925, 927

– 29 (Tex. App.

— Eastland 2019, pet. denied), we considered whether a TCPA motion to dismiss was a “judicial pleading or filing that requests legal or equitable relief” such that it would be subject to dismissal based on a TCPA countermotion to dismiss. We held that a TCPA motion to dismiss does not fall under this “catch

- all”13 provision of the statutory definition because it “is not a procedural vehicle for the vindication of a legal claim

. ” 574 S.W.3d at 929. Although the Hendersons did not specifically invoke the TCPA , their request that Caliber’s claims be dismissed is also not a procedural vehicle for the vindication of a legal claim. See BHP Petroleum Co. , 800 S.W.2d 841; Gen. Land Office , 789 S.W.2d at 570. Therefore, the Hendersons’ request that Caliber’s claims be dismissed is not a “legal action ” as a

“

judicial pleading or filing that requests legal or equitable relief

. ” See C IV

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. § 27.001(6) ; Paulsen v. Yarrell , 537 S.W.3d 224, 234 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied). Because the Hendersons’ request that Caliber’s claim s be dismissed is not a “legal action,” as defined by the s tatute, it is not subject to a TCPA mot ion to dismiss

. B. Right of Association Caliber next asserts that the TCPA applies to both Midland Visions’ and the Hendersons’ tortious interference counterclaims because those claims are based on, related to, or in response to Ca liber’s right of association. I n the trial court, Caliber did not raise the issue that the TCPA applies to the Hende rsons’ counterclaims because those claims are based on, related to, or in response to Caliber’s exercise of its right of association. A party may not asser t on appeal that the TCPA applies to a legal action based on the party’s exercise of a statutory right that was not relied upon in the trial court. Rossa v. Mahaffey , No. 11

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- CV, 2019 WL 5800283, at *4

– 5 (Tex. App.

— Eastland Nov. 7 , 2019, no pet. h .). Therefore, whether the TCPA applies to the Hendersons’ tortious interference counterclaims because those claims are based on, in response to, or related to Caliber’s right of association has not been preserved for our review. See id. Moreover, the r ecord does not establish that the right of association is involved in this case. The exercise of the right of association under the TCPA means14 “a communication between individuals who join together to collectively express, promote, pursue, or defend commo n interests.” C IV

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. § 27.001(2). Caliber argue s that it exercised its right of association when it joined with Whitley, Selmon, and Clement “to collectively express, promote, pursue, or defend” the “common interest” of “the purchase and sale of real estate.” 8 It is undisputed that Whitley, Selmon , and Clement desired to sell their interests in the property before the foreclosure sale and that Caliber wanted to buy those interests. However, there is no allegation, and no evidence, that Caliber and any of the three women intended to develop the pro perty together or to engage in an ongoing business enterprise. Rather, Caliber and the three women were on opposite sides of a business transaction and were ea ch promoting or pursuing their own interests

. While we need not delineate in this case the outer contours of “common interest” under the TCPA, we hold that to establish a “common interest” there must be more than two par ties with distinctly different interests completing a business transaction. See Levatino v. Apple Tree Café Touring, Inc. , 486 S.W.3d 724, 728 (Tex. App.

— Dallas 2016, pet. denied) (concluding that communications “between

8 T here is a conflict among the courts of appeals about whether the right of association requires a “public” or “citizen” component. Compare Dyer v. Medoc Health Servs., LLC , 573 S.W.3d 418, 426 (Tex. App.

— Dallas 2019, pet. denied) (concluding that the “righ t of association” under the TCPA must involve public or citizen participation) , and Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 582 (Tex. App.

— Fort Worth 2019, pet. denied) (“A definition of ‘common’ that focuses on the public or group implements both pur poses [of the TCPA] while one that focuses on any interest shared between two people serves neither .” ), with Gaskamp v. WSP USA, Inc. , No. 01

- 18

- 00079

- CV, 2018 W L 6695810, at * 12 (Tex. App.

— Houston [1st Dist.] Dec. 20, 2018, no pet. h.) (concluding that communications between alleged tortfeasors about the formation of a new company, including communications about allegedly misappropriating information and conspiring to breach alleged fiduciary duties , constituted the “ [ e ] xercise of the ri ght of association” under the TCPA) (alteration in original) , Morgan v. Clements Fluids S. Tex., LTD. , No. 12

- 18

- 00055

- CV, 2018 WL 5796994, at *3 (Tex. App

— Tyler Nov. 5, 2018, no pet.) (same) , Abatecola v. 2 Savages Concrete Pumping, LLC , No. 14

- 17

- 00678

- C V, 2018 WL 3118601, at *7

– 8 (Tex. App.

— Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.) (same) , and Craig v. Tejas Promotions, LLC , 550 S.W.3d 287, 295

– 96 (Tex. App.

— Austin 2018, pet. denied) ( same). We need not address that question in this case because Caliber failed to establish that its communications with Whitley, Selmon, or Clement were between individuals who had a “common interest.”15 adversaries” were “not between persons acting to promote, pursue, or express their common interest”). On this record, Caliber failed to establish by a prepon derance of the evidence that Midland Visions’ tortious interference counterclaims are based on, related to, or in respo nse to Caliber’s exercise of the right of association. C. Right of Free Speech Caliber finally contends that the TCPA applies to Appellees’ tortious interference counterclaims because the claims are based on, related to, or in response to Caliber’s exercise of the right of free speech. The TCPA defines the “exercise of the right of free speech” as a “communication made in connection with a matter of public concern.” C IV

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. § 27.001(3). A “matter of public concern” includes an issue related to health or safety; environmental, economic, or community well

- being; the government; or a good, product or service in the marketplace. Id. § 2 7.001(7)(A)

– (C), (E). Private communication s made in connection with a matter of public concern fall with in the TCPA’s definition of the exercise of the right of free speech. Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Further , the TCPA does not require that the communications specifically mention a matter of public concern or have more than a “tangential relationship” to such a matter. Co leman , 512 S.W.3d at 900 . Rather, the TCPA applies so long as the movant’s statements are “in connection with” “issue[s] related to” any of the matters of public concern listed in the statute. Id. In its opening brief on appeal, Caliber argues that its communications with Whitley, Selmon, Clement, and the Hendersons about the purchase of interests in the property were made in connection with an issue related to “economic matters ,” the government , and goods in the marketplace. In its reply brief, Ca liber also asserts16 that its communications with Whitley, Selmon, and Clement were made in connection with an issue related to community well

- being. We first consider whether Caliber’s communications were made in connection with a matter of public concern because they related to economic or community well

- being. See C IV

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. § 27.001(7)(B). Caliber contends that its communications with Whitley, Selmon, Clement, and the Hendersons were made in connection with the pu rchase and sale of interests in the property and, therefore, related to economic well

- being. However, not every communication about real property is a matter of public concern. S ee Mulcahy v. Cielo Prop. Grp., L

L C , No. 03

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- CV, 2019 WL 4383960, at *3 (Tex. App.

— A ustin Sept. 13, 2019, no pet. h.) (mem. op.) (declining to hold that “ any exchange of information owned by a real

- estate enterprise is a matter of public concern ” ). Specifically, “economic well

- being” under the TCPA requires tha t a communication about real property have an impact on more than the party’s personal financial well

- being. Schmidt v. Crawford , 584 S.W.3d 640, 650 (Tex. App.

— Houston [1st Dist.] 2019, no pet.). 9 In this case, Caliber’s communications with Whit le y, Selmon, Clement, and the Hendersons about the purchase of interests in the property related only to the parties’ personal financial well

- being and therefore were not made in connection with an issue related to economic well

- being.

9 Because the term “economic” is not defined in the TCP A, the Schmidt c ourt relied on the common meanings of “economic,” “economics,” and “economy.” See 584 S.W.3d at 650 (citing Economic , N EW O XFORD A MERICAN D ICTIONARY (3d ed. 2010) (defining term as “of or relating to economics or the economy”); Economics , N EW O XFORD A MERICAN D ICTIONARY (3d ed. 2010) (defining term as “the condition of a region or group as regards material prosperity”); Economy , N EW O XFORD A MERICAN D ICTIONARY (3d ed. 2010) (defining term as “the wealth and resources of a country o r region,” especially “in terms of the production and consumption of goods and services”); Economics , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“The social science dealing with the production, distribution, and consumption of goods and services.”); Economy , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“management or administration of the wealth and resources of a community (such as a city, state, or country)” or “sociopolitical organization of a community’s wealth and resources”)).17 Caliber also argues in its reply brief that its communications with Whitley, Selmon, and Clement were related to community well

- being because the communications impacted the other owners of the property as well as persons who sought to purchase either interests in the property o r the property at auction

. We first note that, although Caliber asserted in the trial court that its communications with Whitley, Selmon, and Clement were made in connection with a matter of public concern, it did not argue in its motion to dismiss, in it s reply to Appellees’ responses to the motion to dismiss, or in its opening brief on appeal that those communications were made in connection with community well

- being. However, because the “unique language” of the TCPA requires us to determine whether the statute applies based on a holistic review of the pleading s , our de novo review is not limited to “the precise legal arguments or record references a moving party made to the trial court regarding the TCPA’s applicability.” Adams , 54 7 S.W.3d at 8 97. Therefore, b ecause Caliber raised in the trial court the issue that its communications with Whitley, Selmon, and Clement were made in connection with a matter of public

concern , we will consider its argument on appeal that those communica tions related to community well

- being, a subpart of the statutory definition of “matter of public

concern
. ” See id. at 896 (“Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.”) ; Greene v. Farmers Ins. Exch

. , 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issu es proper l y before the Court.”)

.18 A communication is related to “community well

- being” if it affects the well

being of the community at large or at least a subset of its residents. Schmidt , 584 S.W.3d at 651 ; see also U.S. Anesthesia Partners of Tex. , P.A. v. Mahana , No. 05

- 18

- 01414

- CV, 2019 WL 4044086, at *4 (Tex. App.

— Dallas Aug. 27, 2019, pet. filed) (noting that plain meaning of community well

- being “refers to a group’s or society’s state of being healthy or happy”)

. 10 Midland Visions pleaded that Caliber’s communications with Whitley, Selmon, and Clement tortiously interfered with Midland Visions ’ contractual or prospective business relations hip with the three

women. Midland Visions did not allege that the communications affected either the

comm unity at la rge, any other owner of an interest in th e property, or any other person who was attempting to buy all or part of the property. Further, t here is no evidence that any person, other than Caliber and Midland Visions, was seeking to purchase Whitley’s, Selmo n’s, or Clement’s interest s in the property . Finally, there is no evidence that whether Caliber , as opposed to Midland Visions , acquired Whitley’s, Selmon’s, or Clement’s interest s in the property had any impact on the community at large or even a subset of its residents. See Mahana , 2019 WL 4044086, at *4 (noting communication that did not relate to drug use in the community at large or even within a subset of the community was no t made in

10 Because “community” is not defi ned in the TCPA, the Schmidt c ourt relied on the common definition of “community.” See 584 S.W.3d at 651 (citing Community , N EW O XFORD A MERICAN D ICTIONARY (3d ed. 2010) (“a group of people living in the same place or having a particular characteristic in common” or “a particular area or place considered together with its inhabitants”); Community , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“neighborhood, vicinity, or locality” or “society or group of people with similar right s or interests”)). T he Mahana c our t relied on the common definition s of both “community” and “well

- being.” See 2019 WL 4044086, at *4 n.2 (citing Community , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“1. A neighborhood, vicinity, or locality. 2. A society or group of people with similar rights or interests.”); Well

- being , D ICTIONARY

. COM , https://www.dictionary.com/browse/we ll

- being (last visited Aug. 7, 2019) (“a good or satisfactory condition of existence; a state characterized by health, happiness, and prosperity; welfare”); Well

- being , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1981) (the state of being happy, healthy, or prosperous)).19 connection with an issue related to community well

- being). On this record , we cannot conclude that Caliber’s communications with Whitl e y, Selmon, and Clement were made in connection with an issue related to community well

- being. Caliber next assert s that its communications with Whitley, Selmon, Clement, and the Hendersons were made in connection with an issue related to the government because the Appraisal District had posted the property for sale

. See C IV

. P RAC

. & R EM

. § 27.001(7)(C). A communication is related to th e “government” when it is about governmental misconduct, Adams , 547 S.W.3d at 896; direct conduct by the government, such a s purchasing property, Schimmel v. McGregor , 438 S.W.3d 847, 859 (Tex. App.

— Houston [1st Dist.] 2014, pet. denied); or the operation of the government, In re Lipsky , 411 S.W.3d 530, 543 (Tex. App.

— Fort Worth 2013, orig. proceeding), mandamus denied , 4 6 0 S.W.3d 579 (Tex. 2015) ; see also Riggs & Ray, P.C. v. State , No. 05

- 17

- 00973

- CV, 2019 WL 4200009, at *8 (Tex. App.

— Dallas Sept. 5, 2019, no pet. h.) (mem. op.) (noting that government’s financial relationship with a party was a matter of public concern under Section 27.001(7) (C) )

. Here , there are no allegations , and no evidence , that Caliber’ s communications were about any misconduct by the Appraisal District when it posted the property for sale, the operations of the Appraisal District, or the purchase of the property by the Appraisal District. Rather, Caliber’s communications with Whitley, Selmon, Clement, and the Hendersons related to the purchase of private inte rests in the property through private sale s . The fact that the posting of the property for sale by the Appraisal District was the impetus for Caliber’s decision to pu rchase interests in the property and for Whitley’s, Selmon’s, Clement’s, and the Hendersons’ decision to sell their interests in the property did not make Caliber’s communications about the purchase of those interests related to the “ government. ”20 Caliber finally argues t hat, because the property is a “good,” Caliber’s communications with Whitley, Selmon, Clement, and the Hendersons were made in connection with an issue rel ated to a good in the marketplace. See C IV

. P RAC

. & R EM

. § 27.001(7)(E). To support it s argument, Caliber relies on Quintanilla v. West , 534 S.W.3d 34, 45 (Tex. App.

— San Antonio 2017), reversed on other grounds , 573 S.W.3d 237 (Tex. 2019), in which the San Antonio Court of Appeals held that financing statement s filed in the public records were communications made in connection with an issue related to a good in the marketplace because the filing provided notice to the public of an encumbrance on “real property offered for sale in the public marketplace

. ” In Sc hmidt , the Houston First Court of Appeals disagreed with the holding in Quintanilla

. 584 S.W.3d at 649 . I n Schmidt , hundreds of plaintiffs alleged that the defendants required them to sign deeds of trust for their homes as security for bail bond loans, fraudulently altered the deeds to inflate the amount of the indebtedness, and filed the deeds in the public records, thereby creating illegal liens on the plaintiffs’ homesteads. Id. at 646 . The defendants fi led a motion to dismiss pursuant to the TCPA , id. , and alleged, in part, that the TCPA applied to the plaintiffs’ claims because the filings in the public records were communications that related to the “transferability of real property” and therefore qual ified as a matter of public concern as a good in the marketplace , i d. at 649

. Because the TCPA does not define the term “ good, ” t he Houston First Court of Appeals looked to the common meaning of the term. Id. It noted that “‘[g]oods’ ordinarily refer to tangible or moveable person al property, as opposed to realty. ” I d. (citing Goods , N EW O XFORD A MERICAN D ICTIONARY (3d ed. 2010) (defining term as “merchandise or possessions”) ; Goods , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (defining term to include tangible or moveable personal property other than21 money, particularly merchandise, and referring to “goods and services” as an illustration of t he term’s ordinary usage ) ; Realty , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (defining “ realty” or “real property” as “land and anything growing on, attached to, or erected on it”) ). The court held that the common meaning of “good” is not “broad enough to embrace real property,” that the TCPA “does not expand the definition of ‘good’ beyond its ordinary usage , ” and that the language of the statute could not be judicially amend ed “ to give the term a more expansive meaning than it ordinarily bears.” Id. at 649

– 50. We find Schmidt ’s reasoning to be persuasive and hold that real property is not a “good” under Section 27.001(7)(C) of the TCPA. Therefore, Caliber’s communications with Whitley, Selmon, Clement, and the Hendersons about the purchase of interests in the property were not r elated to a good in the marketplace. We hold that the trial court did not err when it determined that Caliber failed to establish by a preponderance of the evidence that Appellees’ tortious interference counterclaims or the Hendersons’ request that Caliber ’ s claims be dismissed were based on, related to, or in response to Caliber’s exercise of the right to petition, right of association, or right of free speech. Accordingly, w e overrule Caliber’s first issue. Given our conclusion that Caliber failed to me et its burden to establish that the TCPA applies to Appellees’ tortious interference counterclaims and the Hendersons’ request that Caliber’s claims be dismissed, we do not reach Caliber’s second issue in which it asserts that Appellees failed to establish by clear and specific evidence a prima facie case of each essential element of their claims. See T EX

. R. A PP

. P. 47.1. Attorney’s Fees and Costs In its third and fourth issues , Caliber contends (1) that , because its motion to dismiss should have been granted, the trial court erred when it failed to award Caliber22 attorney’s fees, costs, and sanctions and (2) that the trial court erred when it awarded Midland Visions attorney’s fees and costs

. We review the trial court’s decision to award attorne y’s fees under the TCPA for an abuse of discretion. Sullivan v. Tex. Ethics Comm’n , 551 S.W.3d 848, 857 (Tex. App.

— Austin 2018, pet. denied) ; see also Pinghua Lei v. Natural Polymer Int’l Corp. , 578 S.W.3d 706, 717 (Tex. App.

— Dallas 2019, no pet.) . A trial court abuses its discretion when it acts arbitrarily or unreasonably or without regard to guiding principles. Sullivan , 551 S.W.3d at 857 ; see also Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985). If a trial court gra nts a motion to dismiss under the TCPA, it is required to award the moving party (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the action as justice a nd equity may require and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party from bringing similar actions. C IV

. P RAC

. & R EM

. § 27.009(a). As discussed above, the trial court properly den ied Caliber’s motion to dismiss ; therefore, Caliber was not entitled to an award of attorney’s fees , costs , or sanctions. We overrule Caliber’s third issue. If the trial court finds that the motion to dismiss was frivolous or solely intended to delay, it may award costs and reasonable attorney’s fees to the
nonmovant. Id. § 27.009(b) . “[A] finding that a motion to dismiss is not well taken must precede an award of the respondent’s attorney’s fees under Section 27.009(b).” In re Estate of Calkins , 580 S.W.3 d 287, 300 (Tex. App.

— Houston [1st Dist.] 2019, no pet.). The trial court fou nd that Caliber’s motion to dismiss was frivolous and solely intended for delay and awarded Midland Visions $34,872.50 for reasonable court costs and attorney’s fees. Caliber contends that there is no legal or factual basis or evidence to support the tria l court’s findings.23 “Frivolous” is not defined in the TCPA. However, “the word’s common understanding contemplates that a claim or motion will be considered frivolous if it has no basis in law or fact and lacks a legal basis or legal merit.” Sullivan , 55 1 S.W.3d at 857 (internal quotation marks , citations , and alterations omitted); see also Pinghua Lei , 578 S.W.3d at 717. Caliber a r g u es that the motion to dismiss was not frivolous because “courts have found that the [TCPA] applies to claims for tortious interference with existing and prospective business relations” and that the facts demonstrate that the motion to dismiss was not frivolous. We have determined that Caliber’s motion to dismiss did not have a basis in fact. Further, t he cause of ac tion alleged by the nonmovant is not determinative of whether a TCPA motion to dismiss has a basis in law . Rather, prior to filing the motion to dismiss, the movant must evaluate whether the re is a legal basis to assert that the nonmovant’s legal action i s based on, related to, or in response to the movant’s exercise of a right protected by the statute. C IV

. P RAC

. & R EM

. §§ 27.003(a), .005. This necessarily involves an analysis of the specific communications underlying the nonmovant’s claims

. See Cheniere Energy, Inc. v. Lotfi , 449 S.W.3d 210, 216

– 17 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) (noting that there must be some “nexus” betw een the “communication used to invoke the TCPA and the generally recogn ized parameters of First Amendment protections” in order to avoid “draw[ing] within the TCPA’s summary dismissal procedures private suits implicating only private issues”) ; see also C IV

. P RAC

. & R EM

. § 27.003(a) (party may file a motion to dismiss if legal action “ is based on, relate s to, or is in response to” protected activity)

. There is no indication in the record that Caliber perfo rmed such an analysis prior to filing the motion to dismiss

. Caliber also did not include any substantive analysis in its motion to dismiss as to why its private communications with Whitley,24 Selmon, or Clement over a private business transaction constituted the exercise of a protected right under the statute. The fact that the TCPA may apply to some tortious interference claims based on different facts and communications is not , standing alone, a sufficient basis in law for Caliber to asser t that it exercised a right protected by the TCPA when it communicated with Whitley, Selmon, or Clement. We stress that the fact that a motion to dismiss under the TCPA is ultimately denied is not sufficient, in and of itself, to support a finding that the motion was frivolous. However, on this record, we cannot conclude that the trial court abused its discr etion when it determined that Caliber’s motion to dismiss was frivolous. Therefore, we need not address whether the trial court abused its discretion when it found that the motion to dismiss was solely intended for delay. See T EX

. R. A PP

. P. 47.1

. We overrule Caliber’s fourth issue

. This Court’s Ruling We affirm the order of the trial court

.

KEITH STRETCHER JUSTICE

November 2 7 , 2019 Panel consists of: Bailey, C.J., Stretcher, J. , and Wright, S.C.J

. 11
Willson, J., not participating.

11 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.