## In the Court of Ap p eals Secon d Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00015

- CV

___________________________

On Appeal from the 67th District Court Tarrant County, Texas Trial Cou rt No. 067

- 310073

- 19
Before Sudderth, C.J.; Kerr and Bi rdwe ll , JJ. Memorandum Opini o n by Chief Justice Sudde rth 

### T OTAL 

### G EN 

### S ERVICES 

### , LLC , Appellant

V


### . T H OMASSEN 

### A MCOT 

### I NTERNATIONAL 

### , LLC , Appellee2 MEMORANDUM OPINION I. Int roduction This is yet another case involvi ng the p re
- 2019 version of the Te xas Citizens Participation Act (TCP A) 1 in which one party tries to sho ehorn the other party ’ s ple adin gs into the statute ’ s pu r view. Appel lee Thomassen Amcot International, LLC (TAI) , a worldwide broker of power

- generat

ing equipment , sued Appellant TotalGen Services , LLC for brea ch of

contract , a lleging that TotalGen had deprived it of a $645,000 comm issi on on a $3.4 million tra n saction involving the sal e of a 2012 Solar Titan 130 Gas Turbine Generator Package and a De lt ak Heat Recovery System Generator

. According to TAI, it had entered in to a “ Mutual Confidentiality and Equipment Sourcing Agre ement ” with TotalGen under w h ich it had disclosed proprietary and confidential information to TotalGen in brokering the sa le of the two pieces of equ ipment from MP Mine Ope rations , LLC to ei ther Total Gen or TotalGen ’ s customer , Siouxland En ergy Cooperative

. T AI alle ged that the parties ’ agreement had required TotalGen to obtain a nondisclosure agreement with a non

cir cu mvention provision from Siouxland before disclosing to Siouxland any

1 T h e TCPA ’ s rec ent amendm ents became effective September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S ., c h. 378, §§ 1

– 12 (cod ified at Te x. Civ. Prac. & Rem. Code Ann. §§ 27.001

– .010). Becau se the instant laws uit was filed on August 16, 2019, it is gove r ned by the p re
- amendment ve rsion of the TCPA, and our citations refer to that version.3

informati on about the equipment (so that TAI could claim its comm ission) but inst ead, once To talGen obtained the pro prietary an d confidential informa tion from TAI, T otalGen ha d actively assisted Siouxland in buying the equipment directly from MP

. TotalGen fil ed a m otion to dismiss under the T CPA , stating that when TAI

a lleged in its or iginal petition that “ Total Gen gave S iouxland all the information about the Equi pment ” and “ actively assisted Sio uxland in purchasing the equipment di rectly from M P, ” TAI ’ s b reach

- of

- c ontract claim w as based on or in response to TotalGen ’ s exercise of the right of free speech or right of ass ociation. S ee Tex. Civ. Prac. & Rem

. Code Ann. § 27.003

. The trial court d enied the motion. In the first two of five issue s in this accelerated interlocut ory appeal, TotalGen compl ains that the trial court erred by de nying its motion

. See id

. §§ 27.008 , 51.014(a)(12). And in its f i fth issue, TotalGen asserts that the trial court er red by awarding attorney ’ s fees to TAI

. 2 S ee id. § 27.009(b).

2 TotalGen acknowledge s that any order other than the mot ion to d ismiss cannot be review ed in the instant inter loc utory appeal. Further, b ecause of the automati c stay of all other proceedings in t he case that occurred when TotalGen filed this inter locutory appe al, see Tex . C iv. Prac. & Rem. Code Ann. § 51.014( b), t he trial court has not yet issued an order awarding t he attorney ’s fees. However, in its order d eny ing TotalG en ’ s TCPA motion, the tria l court ma de findings in support of an award of attorney ’s fees t o TAI , and we have reviewed these in the inte rest of judicial economy . See , e.g. , Master son v. Dioces e of N

w. Tex. , 422 S.W.3d 594, 609 (Tex. 2013) (addre ssing argu men t s in advance of remand ).4

We disagre e with TotalGen ’ s argument that the trial court erred by denyin g its motion , but we conclude that there is no evidence to suppor t the trial court ’ s
attor ney ’ s
- fee findings under Section 27.009(b)

. Accordingly, we affirm in pa rt and render in part, and w e remand this case for furth er p roceedings without reaching To ta l Gen ’ s remaining two issues. See Tex. R. App. P. 47.1. II. Dis c ussion As we have not ed before , w e review de nov o a trial court ’ s ruling on a TCPA motion. UATP Mgmt., LLC v. Leap of Faith Adventures, LLC , No. 02

- 19

- 0 0122

- CV, 2020 WL 6066197, at *2 (T ex. App.

— Fort Worth Oct. 15, 2020, pet. filed ) (mem. op.) (citing Be v

ing v. Beadles , 563 S.W.3d 399, 404 (Tex. App.

— F ort Worth 2018, pet

. denied) ); PNC Inv. Co., v. Fiamma Statler, LP , No

. 0 2

- 19

- 00037

- CV, 2020 WL 52411 90, at *3 (Tex. App.

— Fort Worth Se pt. 3, 2020, no pet.) (mem. op.) ( same )

. As applicable her e, t he first step in the TCPA ’ s burden

- shifting analysis is for the defendant

- m ovant to show by a preponderance of the evidence that t he p laintiff ’ s claim is based on, relates to, or i s in response to the movant ’ s exer cis e of the right of free spee ch or the right of association. See T e x. Civ. Prac. & Rem. Code Ann. § 27.005(b); Ghrist v. MBH Real Estate LLC , No. 02

- 17

- 00411

- CV, 20 18 WL 3060 331, at *1 (Tex. App.

— Fort Worth June 21, 2018 , no pet.) (mem. op.)

. In determinin g whether the TCPA applies, we initially look to the plaintiff ’ s alle g ations , Hersh v. Tatum , 526 S. W.3d 462, 467 (Tex. 2017) , as To talGen did in its motion. W hen it is clear f rom the plaintiff

’ s pleadi ngs that the act

ion is covered by the TCPA, the5

defen dant need show no more. Id. (“The basis of a legal action is not det e rmined by the defendant ’ s admi ssions or denials but by the plaintiff ’ s allegations.”). O nly if the

movant sati sfies its burden does the nonmovant , t o avoid dismis sal , ha ve to establish “by clear and specific evidence a prima facie case for each essen tial element of the claim in question.” 3 Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) ; Ghrist , 20 18 WL 3060331, at *1. As a reminder, t he TCPA ’ s pur pos e is to encourage and safeguard “ the constit utional rights of persons to petition , speak freely, assoc iate freely, and otherwise par ticipate in government to the maximum extent p ermitted by law ” and, at the same time, protect the rights of a person to file meri torious laws uits for demonstrabl e injury. T ex. Civ. Prac. & Rem. Code Ann. § 27.002 ; In re Lipsk y , 4 6 0 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) ( “ The TCPA ’ s purpose is to identify and summ arily dispose of lawsuits designed only to chill First A mendment rights, not to dismiss merit orious lawsuits. ” )

. It “ is a bulwark against retaliat ory lawsuit s me a nt to intim idate or silence citizens on mat ters of public concern , ” Dallas Morning News, Inc. v. Hall

, 579 S.W.3d 370, 376 (Tex. 2019) , and its purpo se of curbing str a teg ic

3 There are t hree s teps in TCPA ’s burden

- shifting analysi s , see g enerally Be ving

, 563 S.W.3d at 4 04, but because we conclude that TotalGen failed to me et its burden on th e first step, we do not r each the non movant ’ s c lear

- and

- s pec i fic

- prima

- facie burden in the s econd step , in Section 27.005(c), or
— if the second s tep is met

— t he movan t ’ s subsequent bu rden to establish by a preponderance of the evidence eac h essential element of a valid defen se to th e no nmovant ’ s claim , i n Section 27. 0 05(d)

. See Tex. R. Ap p. P . 47.1.6

lawsuits agai nst public participation (SLAPP suits) through a summary process invo l ving judicial re view of the pleadings and limited evidence, see L ipsky , 460 S.W.3d at 589

– 90, “ is not furthered by a construction finding a right of assoc iation based sim ply on communica tions between parties with a shared interest in a private busines s
tr a nsaction. ” Palladium Metal Recycling, LLC v. 5G Metals, Inc. , No. 05

- 19

- 00482

- CV, 2020 WL 43 33538, at *5 (Tex. App.

— Dallas July 28, 2020, no pet.) ( mem. op .). It is lik ewise not furthe red by applying it to wholly private disputes affecting only the fort u nes of the private parties involved. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC

, 5 91 S.W.3d 127, 13 5

– 37 (Tex. 2019)

. As we have previousl y n oted, the TCPA “ is not a S wiss arm y knife, a tool always ready to obtain the early dismissal of

e ve ry o b jectiona ble c ase or controversy. ” Beving , 563 S.W.3d at 408 n.8. A . TCPA Right of Associa ti on T he right to associate is defined in the pre

- 2019 TC PA as “a communic atio n [ 4 ] between ind ividuals who join together to collectivel y express, promote, purs ue, o r

4 A TCPA “ communication ” includes making or submitting a statemen t or document in any form or medium , including o ral, visual, w ritt en, audiovis ual, or elec tronic. Tex. Civ. Prac. & Rem. Code A n n. § 27.001 (1). No one dis p utes that the basis of TAI ’ s brea ch

- of

- contract claim involves a “ c ommunicatio n. ” See In re IntelliCentrics, Inc. , No

. 02

- 18

- 00280

- CV, 2018 WL 5289379, at *4 (Tex. App.

— Fort Worth Oct. 25 , 2018, orig . proceeding ) (mem. op .) ( “ After all, what breach of co n tract action would not fin d its g enesis in communication between the parties? ” ). But as we noted in Intelli Centrics , there is a distinct ion between communi cations used as evi dence to supp ort a claim for breach of contract (i.e., th e parties ’ sourcing agr e ement ) and a c laim tha t is “ based upon, relate[d] to, or [] i n response to ” th at communication under the TCPA. See i

d.7

defend common interest s.” Garrison Inv. Gr p
. LP v. Lloyd Jones Capital, LLC , No

. 02

- 19

- 001 15

- CV, 2019 WL 5996979, at *6 (Tex. App.

— Fort Worth Nov. 14, 2019, no pet .) ( mem. op.) (quoti ng Section 27.001(2 )). An interest is “ c ommon ” if it is “ shared by t h e public or at least a group. ” Id. (quoting Kaw cak v. Antero Res. Corp. , 582 S.W.3d 566, 5 76 (Tex. App.

— Fort Worth 2 019, pet. denied)). But w hen a communication is betw een private busi ness parties on private business matters and does not involve any pub l ic or citizen participation, it does not implicate the associational rights protected by th e TCPA. Id. ; see Anders v. Oates , No. 02

- 19

- 00116

- CV, 202 0 WL 1809654, at *5 ( Tex. App.

— Fort W orth Apr. 9, 2020, no pet.) (mem. op.) (o bserving that a ll egation s of a fraudulent scheme to induce the sale of a business and the execution of a promissory note d o not fall under the TCPA) ; Newpark Mats & Integrated Se rv s . , LLC v. Caho on E nter

s . , LLC , 605 S.W.3d 671, 680 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) (h oldi n g that “ association ” to form a competing business “ is a private interest that benefits only t he private parties involved in the intended business ven ture ” and thus d o es n ot fall under TC PA ); see also Farhat v. Wilson Scott, LLC , No. 02

- 19

- 00438

- CV, 202 0 WL 1949624, at *3 (Tex. App.

— Fort Worth Ap r. 23, 2020, no pet.) (mem. op.) ( “ [T] he common inter est they joined together to pursue is not an interest tha t the TCPA prote cts; the ‘ common int erest ’ here is, alleg edly, tortfeasors breaching fiduciary duties and working tog e ther for their own personal benefit rather than an interest common to the public or a larger group. ” ).8

In its first issue , T o talGen argue s that the trial cou rt erred by conc luding that the breach

- of

- contract allegations in TAI ’ s original p etition

— that “ T o tal Gen gave Siouxland all the information about the Equ ipment ” and “ actively assi sted Sio uxland in purch asing the Equipment directly f rom MP ”

— d id not rela te t o TotalGen ’s r ig ht of association

. 5 To ta l Gen a sserts that the s e complained

- of communications were group communications in the public marketplac e for the sale and purc hase of power generat ors , 6 that th e comm unications were public becaus e TotalGen h a d f aile d to keep them p rivate and confidential , and th at TotalGen ’ s c o mmunications with Sio uxland and MP were made to collectively pursue the common in terest of closing on th e sale of the subject power g enera tors. TotalGen further assert s that “ generat ing po wer is of significan t interest t o the public ” be yond the interests of the individuals and companies involved in the transaction.

5 TotalGen relied solely on TAI ’s ori ginal petition in i ts moti on to dismiss , as its counsel acknowledged at the hearing , s tating, “ Our m otion raised the plead ings only. ”

6 TotalGen also invi te s u s to reconsider our analysis in Kawcak in light of a dissenti ng opinion in Seg

un d o Navarro Drilli

ng Ltd. v. San R oman Ra nc

h Mineral Part

ners, Ltd. , No. 04

- 19

- 00484

- CV, 2020 W L 48087 16 , at * 6

– 11 (T e x. App.

— San Antonio Ju ne 24, 2020, pet. denied ) (op. on reh ’ g) (Cha pa, J., dissenting). We note that the m a jority in th at case agreed with us, s ee id. at *4 ( “We a gree with Kaw cak ’s thorough anal ysis. ”) , and we d ecl ine the invitation. See a lso Gaskamp v. WSP USA, Inc. , 596 S. W.3d 457, 476 (Tex. App.

— Houston [1st Dist.] 2020, pet. dism ’ d) (op. on en banc reconsideration

) ( following Kawcak an d concluding that “ with r espect to the pre

amendment vers ion of the TCPA, the proper definition of ‘ com mon ’ in the ph r ase ‘ common interests ’ is ‘ of or relating to a community at large: public. ’ ”).9

But , as pointed out by TAI, the com munications at issue in volved nothing more than an exclusively private , arm ’ s
- length trans acti on betwe en priva te parti es involving confidential and propr ietary inf ormation about the seller and equipm ent . TAI ’ s breach

- of

- contract claim is based on the disclosure of confidential information in the sale of two specific pieces of equipment , a nd n o thin g in th e alleged communications addresses a public component or the bigger picture of po wer generation ge nerally , notwithstanding TAI ’ s self

- de sc ription as a business that conduct s transactio ns worldwide

. There is no allegation that TotalG en , S iouxlan d, o r MP joined to ge ther to collectively ex press, promote, pursue, or defend any publ ic or community interests with regard to the sale , c f

. Te x. Civ. Prac . & Re m. Code Ann. § 27.001(2) , and , c ontrary to Total Gen ’ s assertion s, based on TAI ’ s ori ginal pet iti on, the informatio n was not disclosed “ publicly ” to the general public market place fo r generators but rather to an already interested and invo lved third

- party , Sio uxland

. 7

7 In its original petition, TAI alleged, Pursuant to the Sou rc ing Agreement [with Tot alGen], TAI disclosed to TotalGe n proprietary and co nfi dent ial information r eg arding the Equ i pment, including the then

- current owne r; the technical spec ifications and s cope of supply of the Equipment; and the com mercial terms on wh ich the E qu ipment was ava ilable for purchase f rom MP

. . . . TotalGen gave Si ouxland all the informatio n about the Eq u ipment but failed to obtain [a non

- disclo sure agreement containing a non
- circumvention provision]. The Sourcing Agreem ent also required T otalGen to pre vent Siouxl and from circumventing TAI. Tot alGen failed to do t hat, an d actively assisted Siouxland in p urchasing the Equipme nt directly from MP, without providing for the payment of the b ro ker ’s fee to TAI stipulated in th e Sourcing Agreemen t.10

Accordingly, because the communications at issue were between private bu siness parti es o n private busi ne ss matters and did not involve any public aspect , the communicati ons di d not implicate the associational rights protected by th e TCPA , and the trial court did not err by denying this portion of TotalGen ’ s motion

. See Garris on Inv. Gr

p
. LP , 2019 WL 59969 79 , at *6 ; see also Ngo v. Ass ’ n of Wo odwind Lakes Homeowners, Inc. , No. 01

- 18

- 00919

- CV, 2020 WL 7391696 , at *7 (Tex. App.

— H ouston [1st Dist.] Dec. 17, 2020, no pet. h.) ( holding that TCPA ’ s righ t of ass ociation was not implic ated in brea ch

- o f

- contract dis pu te between HOA and hom eowners) ; SSCP Mgmt. Inc. v. Sutherland/Pal umb o, LLC

, No. 02

- 19

- 00254

- CV, 2020 WL 7640150 , at *5 (Te x. App.

— Fort Worth D e c. 23, 20 20 , no pet. h. ) (mem. op

. on reh ’ g ) (stating that , with regard to breach

- of

- e x press

- warr anty claim a nd T CP A right of association , the appellant did not establish that th e TCP A applied when “ [m] ost of these activities relate [d] to the parties ’ private business dealings that they engaged in for their own personal profit and not to an intere st s hared by the pub lic or a group ” and the appellants failed to esta blish that the e xpress warranty was contained in marketing materials or o therwise related to marketing materials ) ; Segundo Navarro Drilling, Ltd. , a t

* 4 ( “ A ppellants have not explained ho w th eir right to ‘ participate in government ’ is served by defining the word ‘ common ’ to include their private business interests. ” ). We overrule TotalGen ’ s first issue.11

B . TC P A Right of Free Speech Under the TCPA, the “exercise of the right of free spe ech” is defined as “ a communication made in connection with a matter of publi c concern.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001( 3). A “matter of public concern” inclu d es an i ssue related t o (A) health or sa fety; ( B) environmental, economic, or communi ty w ell

being; (C ) t he govern ment; (D ) a public office or public figure; or ( E) a good , product, or service in the marketplace

. ” Id. § 27.001(7)

. A communication made in connec t ion with a mat ter of public conc ern must have public relevance beyond the pec unia ry interests of the private parties involved: “A private contract disput e aff ecting only the fortunes of the private parties involved is simply not a ‘matter of public conce r n’ under any t enable understandi ng of those words.” Creative Oil & Gas, LLC , 591 S.W.3d at 136

– 37 ; Anders , 2020 WL 1809654, at *7 ( “ Creative Oil & Gas makes clear that to be a matter of public concern for purp oses o f the TCPA, the matter must invol ve more than the private pecuniary interests of the parties. ” ). But because we may not narrow the TCPA ’ s scope by ignorin g its plain language, if an alleged communication has even a tangential r elationship to a matte r of p u blic concern, then it meets th e TCPA ’ s requirements, and as long as the communication involves a public subject, it need not be made in a public form. Ex xonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017) (per cu riam); see Creative Oi l & Ga s , LLC , 591 S.W.3d at 135.12

In it s second issue , relying on the same all egations set out above , T o talGen argues that the trial court erred by concluding th at TotalGen ’s r ight of free spe ech was not implicated , contending that the se were gro up com m unications in the public marketplace for t he sale and purchase of power gene ration equipment that TAI had hoped to conduct pri vate ly and confidentially bu t that was instead sold and purchased in the public marketplace. But as set out above in our associ a t ion analysis , these communications did not take place in the public ma rketplace ; they were privat e communications related to a pur e ly private transaction. T o wit, as pointed out by TAI, as confidential

ity within the transaction was t h e l i nchpin of t he claim itself, the communications were inheren tly not a matter of public concern , not withstanding To talGen ’ s argum ent that “ power

- gene rat ing equipment” is “ necessarily related to

‘ environmental, ec onomic, or community well

- being

. ’ ” T he allegations in TAI ’ s original petition mention no thing about how the two pieces of equipment had or would have any effect

— environmental, eco nomic, or com munal

— o utside of the private parties ’ business relationship

. See Creative Oil & Gas LLC , 591 S.W. 3d a t 136

– 37 ; see also Goldberg v. EMR (USA Holdings) Inc. , 594 S.W.3d 818, 830 (Te x. App.

— Dallas 202 0, pet. denied) (op. on re h ’ g) (holding that private comm unication s were not related to a matter of public concern when the y involved only private buy

– sell of f ers and did not mention the beneficial effects of recycling provided by the scr ap

metal industry) ; Farhat

, 2020 WL 1949624, at *6 ( “ [C] ommunications are n ot on a

m atter of public concern if the [y] . . . are private communications related to purely13

private commercial business or transactions and, through those communications, the defe ndants

. . . misap propriate the plaintiff ’ s confidential information in ord er to pur sue the business or transaction

. ” )

. Cf. PNC Inv. Co. , 2020 WL 5241190, at *5 ( concluding th a t allegations fe ll under TCPA because they involved a matter of public

concern beyond the private p arties ’ pecuniary intere sts as, “ at every level , ” the

r edevelopm ent project was “ undergirded by the public fisc ” ) ; Nguyen v. ABLe Comm c ’ n s, Inc. , No. 02

- 19

- 0 0069

- CV, 2020 WL 2071757, at *5 (Tex. App.

— Fort Worth Apr. 30, 2020, no pet.) (mem. op.) ( holding commun icat

ions fell under the TCPA when they were on an issue rel at ed to the government

— DF W and its public bid ding process
—

involving concerns with public relevance beyo n d the private parties ’ pecuniary interests) ; Rogers v . Soleil Chartered Bank , N o. 02

- 19

- 00124

- CV, 2019 WL 4686303, at *1 (Tex. App.

— Fort Worth Sept. 26, 2 019, no pet.) (mem. op.) (describing the “ routine [TCPA free

- speech] scenario: one party is dissatisfied with

an o ther ’ s services, the dissatisfied party posts negative information on the inter net, the service p rovider considers the posted state m ents defa matory and su es, and the dissatisfied party (now the defendant) invokes the TCPA ” )

. Accordingly, the trial

court l ikewise did not err by denying the motion on the free

- speech ground , and we

ove rrule TotalGen ’ s s econd issue. C. Attorney ’ s Fees I n its fin al issue , Tot alGen argues that t he trial c ou rt erred, as a matte r of law, by awarding att orney ’ s fees to TAI under Section 27.009(b) because its m otion t o14

d ismiss was not frivolous but rather ba sed on both facts and law and wa s not “solely” intend ed to del ay . TotalGen points out that construction of the statute has “ ebbed and flowed ” to the extent th at “ a construction on e day of a word or phrase in the TCPA could be correct on that day but wrong the next. ” TAI responds that it proved

t hat Tot alGe n ’ s TC PA motion was both frivolous and intended solely for delay. Under Section 2 7.009(

b), “ [i] f the court finds that a motion to dismiss filed under this c hapter is f

rivolous or solely in tended t o delay , the court may award court costs and reas onabl e atto rney ’ s fe es to the responding party. ” Tex. Civ. Prac. & Rem

. Code Ann. § 27.009(b) (emphas is added). Such an award is entirely discretionary if the trial court finds that the motion is f rivo l ous or sol ely intended to delay. Lei v. Nat

. Polyme r Int ’

l Cor p. , 578 S .W.3d 706, 717 (Tex. App.

— Dallas 2019, no pet. )

. “ In the absence of a finding tha t the motion to dismiss was ‘ filed with the sole intention of delaying the proceedings, ’ ‘ an awar d of attorneys ’ fees is not authorized by the

statute. ’ ” Stallion O ilfield Se rv s . Ltd. v. Gravity Oilfield Serv s . , LLC , 59 2 S.W.3d 205, 221

– 23 (Tex. App.

— East land 2019, pet s . denied) (holding that there was no statutory basis

to support the award of attorn ey ’ s fees under Section 27.009(b) when the trial court ab used it s d isc retion by determining that the motion was frivolous a nd “ did not find that the motion to dism iss was solely intended to delay ” (emphasis added) ) ; see Abatecola v. 2 Savages Concrete Pump ing, LLC , No. 1 4

- 17

- 00678

- CV, 2018 WL 3118601, at *16 (Te x. App.

— Ho uston [14t h Dist.] June 26, 2018, pet. denied) (mem. op.) ( “ [T] he trial court improperly rul ed that 2 Savages and Lowry were entitled to attorney ’ s fees15

without finding that the motion to d ismiss was friv o lous or was solely intended to delay. ” ) ; see also H

olland v. Wal

- Mart Stores, Inc. , 1 S.W.3d 91, 95 (Tex. 1999) (op. on reh ’ g) ( “ We have consistently held tha t a prevailing party cannot recover attorney ’ s fees from an opposing party unless permitted by st atute or by con t ract between the parties. ” ). In its orde r den ying Total Gen ’ s motion, the trial court stated , [T]he Cou rt considered

. . . TotalGe n [ ’ s] . . . M otion to Dism iss Pursuant to the [TCPA] , . . . [T

AI ’ s] Response thereto and Request for Attorney ’ s Fees, as well as [Tota l Ge n ’ s] Reply and [TA I ’ s] Su rrepl y and Eme rgency Motion to Strike Defendant ’ s Late

- Filed Motion to Dismiss under [TC PA], F irst Amend ed Answer, and Affi d avit of R. Nick Cioll, as well a s additional briefing requested. After consider ing the Motion, the resp onse thereto, the pleadings, the evide nce on file wi th the Court, and the arguments of counsel, the Court finds that the M otion should be and is hereby DENIED. The Court further finds that the Motion is frivolous, intended for dela

y , and that [TA I ] ’ s Coun sel shal l submit proof of re asona ble a ttorney ’ s fees by affidavit within five (5) business days of the da te of this order , at which tim e the Court will issue its final order awarding a ttorneys ’ fee s pu rsuant to [Section] 27.009

. [E mphasis added. ] The trial court did not find tha t T otalGen ’ s m otion was filed “ so lely ” for delay as requir ed by the statute. 8 See Tex . Civ. Prac. & R em. Code Ann. § 27.009( b). Accordingly, we sustain this p ortion of TotalGen ’ s final issue and tu rn to whether the

8 Because the t rial court ’ s “ delay ” fi nding is insufficient as a matter of law , we will not address TAI ’ s argument s that TotalGen used “ procedural am bush tactics ” and “ made the conscious decision to lie behind the log and asser t evidence and defe nse only days befor e the hearing ” o ther than to note that e
- filing permit ted both parties to file documents ou tside of stand a rd court bus iness hou rs , as well as, in TAI ’ s case, minutes before the hearing.16

attor n ey ’ s fee award can be salv aged on th e ba sis of the trial court ’ s finding that the motion was frivolous. The TCPA does not define “ frivo lous , ” but our sister courts that have addressed the issue have noted that the “ common unde rstand ing ” of the word

“ conte m plates that a claim or motion wil l b e consider ed frivolous if it has no basis in law or fact and l acks a legal basis or legal merit. ” Marrujo v. Wisenbaker Builder Serv s . , Inc. , No. 01

- 19

- 00056

- CV, 2020 WL 7062318, at *11 (Te x. App

. — Houston [1st Dist.] D e c. 3, 2020, no pet. ) (mem. op.) (quo ting Su ll i van v. Tex. Ethics Comm ’

n , 551 S.W.3d 848, 857 (Tex. App.

—

Austin 2018, pet . denied) , and citing C aliber Oil & Gas, LLC v. Midland Visions 2000 , 591 S.W.3d 226, 243 (Tex. App.

— Eastland 2019 , no p et.) , and Lei , 578 S.W. 3 d at 71 7 , as following Sulli van ). The fact that a TCPA motion to dismiss is ultimately denied is not sufficient, standing alone, to su pport a finding that the motion was f

rivol ous. Id. at *12 (citing Caliber O il , 591 S.W.3d at 24 4)

. If there is at least a c olorable basis for the T CPA motio n , then it is not frivolous. I

d. In Mar

rujo , the appellee sued the appellant s
— a former emplo yee and her new employer

— i n August 2018 for violation of a non

- compete agreement, raising b reach

- of

- contract and tortiou s interference claims, and the ap p ell ant s f iled a TCPA motion to dismiss based on the exercise of the rights of free speech , association , and petition. Id. at *1

– 3 , *8

. The trial court d enied the motion and also denied the appell ee ’ s r equest for atto rney ’ s f e es under Section 27.009(b). Id. at *1 , *4. The Marrujo court affirmed the order denying the motion to dismiss but also concluded17

that the trial court ’ s denial of the attorney ’ s fee r equest was not an abuse of discretion beca use th e state of the law had b een unclear when the appella nts f iled their TCPA motion in 201 8

. Id. at *12. When the appellants filed their motion in that case , th e supreme court had not yet decided Creative Oil & Gas, LLC ( de livered December 20, 2019 ), and the Marrujo co urt did not issue its e n banc deci sion in Gaskamp until F ebrua ry 20, 2020

. Id. Accordingly, the re had been “ at least a colorable basis ” for the motion becaus e those dispositive cases had not yet been decided. Id. If , by the time a T CP A motion is filed, suffic ient discovery h a s been taken and evidence shown t o the trial court to support all of the pleaded causes of action, the trial court does not abuse its d iscretion by finding that the motion is frivolous. Lei , 578 S.W. 3d at 718. For e xample, in Lei , by the time that the a p pellants filed th eir TCPA motion, disc overy had al ready been undertaken and the trial court had already heard evidence

—

including testim ony and forensic evidence

— a t an injunction hearing that was sufficient to esta blish a prim a facie case on each of the ap p ellee ’ s causes of action

. Id. at 717

– 18. Here, T AI filed its original petition on August 16, 2019

— half a year after this

court issued its opinion in Kawcak on Feb r uary 21 , 2019 , a nd some three months after the supreme c ourt denied the petition for r evie w on M a y 10, 2019. See 582 S.W.3 d at 5 66. However, in Kawcak , we did not determine how large a group “ crosses the boundary of common ” and held that “ the interests of two conspirators who join18

together to commit a tort do not cross the threshold of co mmon , ” i d. at 576 (emp hasis added) , which i s not e xactly o n point in this breach

- of

- contr act case. T otal Gen filed its motion to dismiss on October 25, 2019

. We decided Garrison on November 14, 2019 , see 2019 WL 5996979, at * 1, whi ch, under the Texas Rules of A ppellate Procedur e, meant the losing p arty had until December 29, 2019, assuming no motion for rehearin g was filed , to file a petition for review in the supreme court. See Tex. R. App. P. 53.7( a). A t the December 12, 2019 h earing o n TotalGen ’ s TCPA mot i on , TAI ’ s counsel admitted that “ non e of the S econd Court of Appeals [ cases] hav e dealt with just a bre ach [

- ] of [

- ] contract issue ” but argued that th e is sue was “ relatively decided , ” relying on Garrison , which “ was just decided the other day. ” And Creativ e Oil & Gas, LLC w as not decided until December 20 , 2019

. See 591 S.W.3d at 12 7

. Accordingly , there was at least a colorable basis for the motion at the time that TotalGen filed it in October 2019

. See Marrujo , 2020 WL 7 062318, at *1 2. And alt hough TAI ar gues on

a p peal t hat To talGen kn ew that TAI had s ufficient evidence to build a prima fac ie

cas e “ well be fore bringing its mot ion to dismiss, ” that evidence had not been h eard by the trial court prior t o the December hearin g . Cf. Lei , 578 S.W. 3d at 7 17

– 18. Accordin g

ly, we concl ude that the trial court a bused its discretion by finding that Tot alGen ’ s motion was fri volous, and we sustain the remai nder of Total Gen ’ s fift h issue.19 III. Conclusion Having co n cluded that TotalGe n did not meet its initial burden to show by a pre pondera nce of the evidence that TAI ’ s breach

- of

- contract claim fell und er the TCPA, we overrule To talGen ’ s fi rst and second issues and affirm the portion of the trial court ’ s order denyi n g the TCPA motion. But having concluded that the trial

court a b used its dis cretion regarding the aw ard of attorney ’ s fees to TAI unde r Section 27 .009(b), w e s ustain T otal Gen ’ s f if th issue , strike that portion of the order, and remand the case for further proceedings.

/ s/ Bonnie Sudderth Bon nie Sudderth Chief Justice Delivered: January 21, 2021